Petition for Writ of Certiorari — Fields v. Department of Labor

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\ Supreme Court, U.S

) FILED

OQ G28 SEP 2 71999

No. ____ppies og HE CLERK

In The

Supreme Court of the United States

DAVID A. FIELDS, ROBERT P. WEISS

and JACK D. STEWART,

Petitioners,

VS.

UNITED STATES DEPARTMENT OF LABOR

ADMINISTRATIVE REVIEW BOARD and

FLORIDA POWER CORPORATION,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Davip MicHaet CALDEVILLA

Counsel of Record

Davip Datias Dickey

bE LA Parte, Gitpert & Bates, P.A.

101 East Kennedy Boulevard

Suite 3400

Post Office Box 2350

Tampa, Florida 33601-2350

Telephone: (813) 229-2775

Attorneys for Petitioners

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the Court of Appeals deprived petitioners

of due process by applying the substantial evidence stan-

dard of review, instead of the de novo standard of review,

to an administrative tribunal’s summary judgment which

dismissed without an evidentiary hearing petitioners’

“whistleblower” complaints against their employer,

despite the existence of genuine issues of material fact

concerning the employer’s affirmative defense that peti-

tioners “deliberately” caused a violation of nuclear regu-

latory requirements.

PARTIES TO THE PROCEEDINGS

The caption of the case contains the names of all

Parties to the Proceedings in the court whose judgment is

sought to be reviewed, and there is no parent or subsid-

lary company required to be listed by S. Ct. R. 29.6.

Te te te

iii

TABLE OF CONTENTS

Page

i CTEM deo iccencbvccccccsscvesees i

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

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CONSTITUTIONAL PROVISIONS, STATUTES, AND

REGULATIONS INVOLVED ..................... 2

SEAR BOeeINE OF} TEE CASE... ..cccccccsccccccess 3

REASONS FOR ALLOWANCE OF THE WRIT...... 12

The Court of Appeals’ decision concerning an

important issue is in conflict with the decisions of

its sister courts and this Court, represents a gross

miscarriage of justice, and so far departs from the

accepted and usual course of judicial proceedings

and sanctioned such a departure by a lower tribu-

nal, as to call for an exercise of this Court’s super-

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EME sab sescccncccccncseccecscceceasoces 25

APPENDIX

A. Court of Appeals’ Decision................. App. 1

B. Court of Appeals’ Order Denying Petition for

Rehearing and Rehearing En Banc........... App. 7

TABLE OF CONTENTS - Continued

Page

Administrative Review Board’s Final Decision

and Order

Administrative Law Judge’s Recommended

Decision and Order Granting Respondent's

Motion for Summary Decision............. App. 39

aetaiattentaeimiind

TABLE OF AUTHORITIES

Page

Cases:

Agosto v. Immigration and Naturalization Service,

Ce Se FOF Cai iis erie vecc ec se 13, 17, 18

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). ..16, 22

Armstrong v. Manzo, 380 U.S. 545 Gets cas va ccunus 19

Associated Press v. U.S., 326 US. 1 CROMER anycacceec 20

Bedoya v. Coughlin, 91 F.3d 349 (2d Cir. 1996)........ 14

Brock v. Roadway Express, Inc., 481 U.S. 252 (1987) .... 19

Byers v. City of Albuquerque, 150 F.3d 1271 (10th

MB: GOED eeiknodccctadecitrss to eee 14, 15

Celotex Corp. v. Catrett, 477 U.S. 317 cape 16, 22

Cleveland Board of Education v. Loudermill, 470 U.S.

Oe Ne ncbnttnatenbeie rae shies aes 12

Cornelius v. Sullivan, 936 F.2d 1143 (11th Cir. 1991) .... 16

Croley v. Matson Navigation Co., 434 F.2d 73 (5th

seale tlns MILLE City Oe LE 23

Cuellar v. Texas Employment Comm., 825 F.2d 930

Ce ix Fltesy sv e'wew sewer aera ee 20

Doehler Metal Furniture Co. v. U.S., 149 F.2d 130 (2d

aes Le T TN TE ER IT LS 21

In re Varrasso, 37 F.3d 760 took S| a eee 23

Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996) ...14, 17

Eastman Kodak Co. v. Image Technical Services, Inc.,

re OR. OEE CO rice tbintin. cule ee 14

TABLE OF AUTHORITIES —- Continued

Page

Eccles v. People’s Bank of Lakewood Village, 333 U.S.

EBB CIDER) . 03 cccccccccccccccccccccccgccccccccscess 20

Goldberg v. Kelly, 397 U.S. 254 (1970)......... 13, 19, 23

Greene v. McElroy, 360 U.S. 474 (1959).........-0005- 13

Hairston v. Gainesville Sun Publishing Co., 9 F.3d

G13 (1th Cir.1993).......ccccccccccccccccccccceces 14

Hannah v. Larche, 363 U.S. 420 (1960)..............4. 20

Hartsel v. Keys, 87 F.3d 795 (6th Cir. 1996), cert.

den., 519 U.S. 1055 (1997)... ......ceeeeccceeces 14, 17

Heyman v. Commerce & Industry Ins. Co., 524 F.2d

BS27 (28 Che. 1975) ..cccccccccccccccccccessescsecs 21

Higgins v. E.I1. Du Pont de Nemours & Co., 863 F.2d

1162 (4th Cle. 1968). 00. ccccccccccccccccesccssceses 14

Hurd v. Sheffield Steel Corp., 181 F.2d 269 (8th Cir.

RODD. 2 onccecccsnccctcddndausanacceceseuseauauseen 15

John D. Copanos & Sons, Inc. v. Food & Drug Admin.,

854 F.2d 510 (D.C. Cir. 1988)................-000e 14

Johnson Foils, Inc. v. Huyuck Corp., 61 F.R.D. 405

(N.DNLY. 2197S. . cccccccscccccccccesscdcessesesss 21

Kahn v. Secretary of Labor, 64 F.3d 271 (7th Cir.

BODED o.oo ccccccccscccscsscsncnnacaunskeutsseeeneenn 16

King v. Ames, 179 F.3d 370 (Sth Cir. 1999)........... 14

Mathews v. Eldridge, 424 U.S. 319 (1976) ............. 19

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio

Corp., 475 U.S. 574 (1986)... .. 2... . eee cece eee e ees 16

vii

TABLE OF AUTHORITIES - Continued

Page

McCaslin v. Wilkins, 183 F.3d 775 (8th Cir. 1999). .14, 17

McLaughlin v. Richland Shoe Co., 486 U.S. 128

GUPe cbcbecesovectcncdeekesec¥avebedébccavdvii 10, 11

National Screen Service Corp. v. Poster Exchange,

Inc., 305 F.2d 647 (5th Cir. Seema |

National Wildlife Federation v. Browner, 127 F.3d

oo Peer 14

New York Life Ins. Co. v. Brown, 84 F.3d 137 (5th Cir.

Pn Teh bene reas Geuubesd s6cedche diodes soto... 22

North Alabama Express, Inc. v. U.S., 585 F.2d 783

PE Mo tencetccaviceneeduak kubkihoseces. 20

Podlesak v. Wesley, 849 S.W.2d 728 (Mo. App. S.D.

WUNNES<sA6rahepnuns BASUES bhp Aahine valhsudndeaesce ce 21

Provenz v. Miller, 102 F.3d 1478 (9th Cir. 1996), cert.

— e F ise Tee Rees 14, 23

Olson v. Auto Owners Ins. Co., 700 S.W.2d 882 (Mo.

ME Wathdndudutcndwesecceeccduesdcheceésvcwk 21

Olson v. General Elec. Astrospace, 101 F.3d 947 (3d

FE EE Fe ee ee om 14

Puerto Rico Aqueduct & Sewer Authority v. ULS.

Environmental Protection Agency, 35 F.3d 600 (1st

Cir. 1994), cert. den., 513 U.S. 1148 (1995) ...... 14, 20

Ryan's Furniture Exchange, Inc. v. McNair, 162 So.

Oe WD SA vivttncGawdeson veaceeccccecs scuba: 19

Sammons v. Taylor, 967 F.2d 1533 (11th Cir. 1992) .... 23

Viii

TABLE OF AUTHORITIES - Continued

Page

Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620

I ov cvccncdcpcenaccanenctsessesredstessenceens 20

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111

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Trustees of Dartmouth College v. Woodward, 17 U.S.

PED CIID bovine ccdnccsvcceresesacesccscszssonaeses 19

U.S. v . Diebold, Inc., 369 U.S. 654 (1962)............ 16

Wechsler v. Steinberg, 733 F.2d 1054 (2d Cir. 1984)...... 23

Weinberger v. Hynson, Westcott & Dunning, Inc., 412

US. GOD (1973) 2.2 cccccccccccccccescess 17, 18, 19, 20

Wilson v. Williams, 997 F.2d 348 (7th Cir. 1993)...... 14

Unrirep States CONSTITUTION:

United States Constitution, Fifth Amendment...... 2, 12

United States Constitution, Fifth Amendment,

Due Process Clause. .........-c2csscccsccceeees 12, 13

STATUTES:

Administrative Procedure Act............+++-ses008 18

Atomic Energy Act of 1954........... 2, 3, 4, 9, 10, 22

Energy Reorganization Act of 1974..............--. 2, 3

Energy Reorganization Act, 211(a)..........--.+---. 2,7

Energy Reorganization Act, 211(g) ... 2, 8, 9, 10, 11, 13

Immigration and Nationality Act..............+++++- 17

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TABLE OF AUTHORITIES - Continued

Page

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RULES AND REGULATIONS:

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PETITION FOR WRIT OF CERTIORARI

Petitioners David A. Fields (“Fields”), Robert P.

Weiss (“Weiss”) and Jack D. Stewart (“Stewart”) pray that

the United States Supreme Court grant a writ of certiorari

to review the United States Court of Appeals for the

Eleventh Circuit’s opinion below.

OPINIONS BELOW

The Court of Appeals’ opinion is reported at 173 F.3d

811, and is reprinted in the appendix hereto, p. 1.

The Court of Appeals’ order denying the petitioners’

petition for rehearing with suggestion of en banc consid-

eration is unreported, but is reprinted in the appendix

hereto, p. 7.

The United States Department of Labor Administra-

tive Review Board’s final decision and order is reported

at 1998 WL 122759, and is reprinted in the appendix

hereto, p. 9.

The administrative law judge’s recommended deci-

sion and order granting Respondent Florida Power Cor-

poration’s motion for summary decision is unreported,

but is reprinted in the appendix hereto, p. 39.

JURISDICTION

The Court of Appeals entered its opinion on April 21,

1999, and denied petitioners’ timely petition for rehearing

with suggestion of en banc consideration on June 28,

1999. Petitioners invoke this Court’s jurisdiction pursuant

to 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED

1. The Fifth Amendment to the United States Con-

stitution provides, in part, “No person shall . . . be

deprived of life, liberty, or property, without due process

of law[.]”

2. Section 211(a) of the Energy Reorganization Act

of 1974, as amended, 42 U.S.C. 5851(a), provides in part:

(1) No employer may discharge any

employee or otherwise discriminate against any

employee with respect to his compensation,

terms, conditions, or privileges of employment

because the employee .. .

(A) notified his employer of an alleged

violation of this Act or the Atomic Energy Act of

1954 (42 U.S.C. 2011 et seq.)....

(D) commenced, caused to be commenced,

or is about to commence or cause to be com-

menced a proceeding under this chapter .. .

3. Section 211(g) of the Energy Reorganization Act

of 1974, as amended, 42 U.S.C. 5851(g), provides:

Subsection (a) of this section [prohibiting

discrimination] shall not apply with respect to

any employee who, acting without direction

from his or her employer (or the employer’s

agent), deliberately causes a violation of any

requirement of this chapter or of the Atomic

ERE IER Gut heii

Energy Act of 1954, as amended [42 U.S.C. 2011

et seq.].

4. Title 29 C.ER. 18.40(d) provides, in part, “The

administrative law judge may enter summary judgment

for either party if the pleadings, affidavits, material

obtained_by discovery or otherwise, or matters officially

noticed show that there is no genuine issue as to any

material fact and that a party is entitled to summary

decision.”

5. Title 29 C.F.R. 18.41(b) provides, in part, “Where

a genuine issue of material fact is raised, the administra-

tive law judge shall, and in any other case may, set the

case for an evidentiary hearing.”

STATEMENT OF THE CASE

I. The Underlying Facts

This is a “whistleblower” case, brought pursuant to

211 of the Energy Reorganization Act of 1974, as

amended, 42 U.S.C. 5851 (the “ERA”). Petitioners held

nuclear reactor operator licenses issued by the United

States Nuclear Regulatory Commission (the “NRC”), and

were employed as control room operators at a nuclear

power plant owned by their employer, Respondent Flor-

ida Power Corporation (the “employer”). Fields was a

Nuclear Shift Supervisor, Weiss was an Assistant Shift

Supervisor, and Stewart as a Chief Nuclear Operator.

Petitioners brought this action against their employer for

alleged discriminatory and retaliatory acts to avoid

adverse NRC regulatory attention as a direct consequence

of petitioners’ protected activities when they disclosed

that the employer had committed numerous nuclear reg-

ulatory violations promulgated under the Atomic Energy

Act, 42 U.S.C. 2011 et seq.

Petitioners were responsible for the safe operation of

the employer’s nuclear reactor (App. 11, 41). One respon-

sibility of a control room operator is to monitor hydrogen

pressure and fluid levels in the Makeup Tank, a compo-

nent of the reactor coolant system and part of the high

pressure injection system used to cool and safely shut

down the reactor in an emergency (App. 11, 42). The

employer modified its high-pressure injection system so

that in an emergency the Makeup Tank would drain

before the source of fluid to the pump “crossed-over” to

another tank (App. 11-12). Too much hydrogen pressure

will cause the Makeup Tank to empty before the source of

fluid to the pump could cross-over resulting in hydrogen

intrusion into the pump and immediate cataclysmic fail-

ure. Failure of the high-pressure injection pump in an

emergency may result in inadequate fluid necessary to

cool the nuclear fuel and a catastrophe could ensue.

Accordingly, it is imperative that the Makeup Tank is

operated so that the pump will perform unhindered in an

emergency.

In April 1993, the employer issued a new calculation,

“Curve 8”, to regulate the fluid and hydrogen pressure

levels in the Makeup Tank and instructed its control room

operators to maintain hydrogen pressure at the maximum

allowable limits (App. 11-12). The employer issued Curve

8 an “operating curve” that should be well within the

Makeup Tank’s “design basis” requirements (App. 12).

Merely exceeding an operational curve is not a violation

ail alacieaacaaa

of a nuclear safety requirement (App. 12). In contrast,

when a design basis is exceeded, the problem must be

immediately corrected and reported to the NRC within

one hour (App. 12). See 10 C.FR. 50.72(b)(1)(ii)(B). It is

undisputed that unbeknownst to Petitioners, Curve 8 was

actually a design basis limit established to protect the

pumps in an emergency (App. 15, 46).

The employer’s directives to maintain maximum

hydrogen pressure in the Makeup Tank concerned its

control room operators (App. 12). In May 1994, peti-

tioners tested the high-pressure injection system at the

employer’s request and discovered that the Makeup

Tank’s actual response was contrary to Curve 8 (App.

12-13). Petitioners reported their concerns in writing to

the employer and received oral and written assurances

that maintaining hydrogen pressure in accordance with

Curve 8 was safe (App. 13). Petitioners and others raised

further concerns about Curve 8 to no avail with the

employer and the NRC’s resident inspector at the plant

(App. 13).

On September 2, 1995, the employer issued a written

opinion that Curve 8 was accurate, “reasonably conserva-

tive,” and safe, and that the issue would be closed (App.

13). Petitioners believed a response was necessary and on

September 4 and 5, 1994 conducted operational “evolu-

tions” not required by plant conditions to obtain data to

show their concerns with Curve 8 were valid. It is undis-

puted that petitioners “believed that the planned evolu-

tion comported with existing procedures and was within

their authority to perform” and “did not know that

[Curve 8] was a design basis that should never be

exceeded” (App. 13-15, 46).

The Makeup Tank exceeded Curve 8 during both

evolutions (App. 14). The data gathered during the Sep-

tember 4th evolution was inconclusive (App. 14). Anal-

ysis of the September 5th data validated petitioners’

safety concerns and showed that if the Makeup Tank was

operated on or even in the acceptable region near Curve

8, hydrogen would enter the high-pressure injection

pump during an emergency (App. 15). Petitioners pre-

pared and submitted to their employer a Problem Report

concerning the data obtained from the September 5th

evolution (App. 15). The report did not mention the Sep-

tember 4 evolution, but Weiss informed a superior, Senior

Licensing Engineer Paul Fleming, about it (App. 15).

In response to the September 5th evolution, the NRC

instituted an investigation and the employer initially

reassigned petitioners to other positions (App. 15). The

employer’s response to the NRC’s investigation

attempted to blame petitioners for the “unauthorized”

September 5th evolution and minimized the significance

of what petitioners had discovered. In response, Fields

wrote his own letter to the NRC (App. 16). In July 1995,

immediately prior to petitioners’ appearance before the

NRC, a manager asked Fields if another evolution had

been performed, which Fields confirmed (App. 16). The

employer subsequently discharged Fields and Weiss “for

violation of procedures and failure to disclose the full

intent, details and existence of the September 4 test for

nearly 11 months.” Stewart was reprimanded and trans-

ferred (App. 16-17). Petitioners allege that the employer’s

actions were a pretext to avoid unfavorable regulatory

action from the NRC.

tie a ee Te

The NRC issued a Notice of Violation and Imposition

of Civil Penalties to the employer finding it committed

several serious violations of NRC requirements, including

routinely exceeding Curve 8, a design basis curve (App.

17, 46). The NRC also found that petitioners conducted

the evolutions to resolve safety issues that had not been

adequately addressed by the employer (App. 17, 46). The

NRC also wrote letters to petitioners stating that the

unauthorized evolutions constituted a violation of the

conditions of their license but did not take formal

enforcement action (App. 17). Although the NRC recog-

nized that petitioners’ actions resolved a serious safety

issue, the NRC reprimanded them for not raising the

issue to higher levels of the NRC and their employer

(App. 17-18, 48-50). Petitioners vigorously denied that the

evolutions were “unauthorized” or that they had failed to

meet the conditions of their licenses and requested a

hearing to appeal the NRC’s findings (App. 51). The NRC

denied petitioners’ request for a hearing, claiming that

they were not entitled to one because no enforcement

action had been taken against them (App. 51).

II. The Proceedings Below

The ERA provides certain remedies to employees of

NRC licensees upon a showing of being subjected to

discriminatory action for engaging in protected activity,

such as providing notification of an alleged violation of

the ERA or the Atomic Energy Act. Pursuant to ERA

211(a) (42 U.S.C. 5851(a)), Petitioners filed complaints

with the United States Department of Labor (the “Depart-

ment”) in February 1996, alleging that their employer had

engaged in such discriminatory action. The Department

assigned the case to an administrative law judge (“ALJ”).

During the discovery phase of the case, the employer

moved for a summary judgment pursuant to 29 C.F.R.

18.40 and 18.41. The motion asserted that ERA 211(g) (42

U.S.C. 5851(g)) barred petitioners’ claims because they

allegedly “deliberately” caused a violation of nuclear reg-

ulatory requirements. The requirements of 18.40 and

18.41 are essentially identical to those of Federal Rule of

Civil Procedure 56, which governs summary judgments

in civil court cases.

The ALJ conducted a non-evidentiary motion hearing

to receive oral legal arguments on the employer’s motion.

The ALJ subsequently entered a written recommended

decision, which included a list of matters he described as

being “irrefutable facts” (App. 41, 60). The ALJ's irrefuta-

ble facts included the following:

@ Petitioners “were concerned that Curve

8... was invalid” and their concerns “were

serious.” Fields “believe[d] catastrophic

events could happen[.]” “Weiss believed

there was a potential for catastrophe at the

plant[.]” “Stewart states the potential for

catastrophe was that crews were operating

in a region where a LOCA [loss of cooling

accident] could occur[.]” (App. 42).

@ Petitioners believed “they had a duty to ver-

ify a critical safety issue” (App. 42).

@ “The intent [of the evolutions] was to give

[the employer’s engineering department]

data that would convince them that there

was a problem with the curve” (App. 44).

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®@ Petitioners testified that they used a “rou-

tine procedure” which “was clearly within

[their] authority to perform[.]” Fields testi-

fied that the evolutions were “within

OP-402, a pre-approved procedure.” (App.

45).

@ Petitioners “did not know, at the time of

their acts, that Curve 8 was a design basis.”

(App. 46).

Despite finding that the foregoing facts are irrefuta-

bly established in the record, the ALJ concluded that the

employer’s summary judgment motion should be granted

pursuant to the affirmative defense of ERA 211(g) (42

U.S.C. 5851(g)). The ALJ’s rationale was that 211(g)

requires the employer to prove (1) the employee’s act was

done without the employer’s direction; (2) the employee

deliberately did an act; and (3) the act caused a violation

of the ERA or Atomic Energy Act (App. 59-60). The ALJ

ruled that Petitioners “deliberately caused a violation” as

that phrase is used in 211(g), because they intentionally

committed acts and those acts violated the law, irrespec-

tive of whether they knew those acts would violate the

law (App. 63-64). Despite the NRC’s prior denial of peti-

tioners’ request for a hearing, the ALJ concluded that

petitioners caused a violation based upon his consider-

ation of the NRC letters and reports and being “per-

suaded” by the findings therein (App. 65).

On March 13, 1998, the Department’s Administrative

Review Board (the “Board”) issued its Final Decision and

Order. Consistent with the ALJ, the Board held that Peti-

tioners “believed that the planned evolution comported

with existing procedures and was within their authority

to perform” (App. 13), and “did not know that [Curve 8]

was a design basis that should never be exceeded” (App.

14-15). The Board also ruled as follows:

[Petitioners] did not have actual knowledge that

[the evolutions] would cause a violation of the

ERA or the Atomic Energy Act, as [the

employer’s] actions demonstrate. The company

presented Curve 8 to reactor operators as a con-

servative operating curve and there is no viola-

tion if such a curve is exceeded by a small

amount. In addition, the annunciator light indi-

cating that [Makeup Tank] pressure was too

high had been triggered often in the months

prior to September 1994. [Petitioners] suspected,

but did not actually know, that Curve 8 was

nonconservative. Indeed, it was only after [peti-

tioners] conducted the unauthorized evolutions

that [the employer’s] managers learned defi-

nitely that Curve 8 was a design curve that

should never be exceeded.

(App. 33).

In addition to conceding that petitioners had no

knowledge that the evolutions would cause a violation,

the Board rejected the ALJ’s interpretation of 211(g) and

held:

[T]o establish a valid section 211(g) defense, a

respondent must show that a complainant will-

fully or recklessly caused a violation of the ERA

or the Atomic Energy Act, that is, that the com-

plainant acted with knowledge or with reckless disre-

gard of whether his or her act would cause a

violation.

(App. 32; emphasis added). The foregoing interpretation

of 211(g) is consistent with McLaughlin v. Richland Shoe

Co., 486 U.S. 128, 133 (1988) (willful violations for statute

of limitations purposes under the Fair Labor Standards

Act may be established if committed either knowingly or

in reckless disregard); Trans World Airlines, Inc. v.

Thurston, 469 U.S. 111, 127-128 (1985) (adopting the

“knowledge” or “reckless disregard” standard for the

term “willful violations” under the Age Discrimination in

Employment Act, 29 U.S.C. 626(b)).

Despite the foregoing “irrefutable facts” and cor-

rected interpretation of 211(g), the Board nonetheless

concluded as a matter of law, without an evidentiary

hearing, that petitioners had “acted with reckless disre-

gard of whether a violation . .. would occur” and that the

employer had, therefore, established a valid 211(g)

defense (App. 35). Accordingly, the Board granted the

employer’s summary judgment motion and dismissed

petitioners’ complaints (App. 35).

Petitioners timely appealed the Board’s summary

decision to the United States Court of Appeals for the

Eleventh Circuit, and contended among other things, that

summary judgment was erroneously granted because

genuine issues of material fact exist and because a party’s

state of mind is an issue which is not generally suscept-

ible to summary judgment. By opinion issued on April 21,

1999, the Court of Appeals affirmed the Board’s summary

decision. (App. 1-6).

Although the Court of Appeals’ opinion twice

acknowledges that the Board granted a summary judg-

ment motion (App. 2, 4), the opinion inexplicably and

inaccurately states that this occurred “[a]fter an evidenti-

ary hearing” (App. 4). Instead of applying the de novo

standard of review, the Court of Appeals affirmed the

Board’s summary judgment on the grounds that it “was

reasonable and supported by substantial evidence con-

tained in the record” (App. 6). Petitioners’ timely petition

for rehearing with suggestion of en banc consideration

was subsequently denied by the Court of Appeals’ order

dated June 28, 1999 (App. 7-8).

This timely petition for writ of certiorari followed.

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEALS’ DECISION CONCERNING

AN IMPORTANT ISSUE IS IN CONFLICT WITH THE

DECISIONS OF ITS SISTER COURTS AND THIS

COURT, REPRESENTS A GROSS MISCARRIAGE OF

JUSTICE, AND SO FAR DEPARTS FROM THE

ACCEPTED AND USUAL COURSE OF JUDICIAL

PROCEEDINGS AND SANCTIONED SUCH A DEPAR-

TURE BY A LOWER TRIBUNAL, AS TO CALL FOR AN

EXERCISE OF THIS COURT’S SUPERVISORY POWER.

The Fifth Amendment to the United States Constitu-

tion is the cornerstone upon which the American justice

system is built and upon which all litigants rely when

seeking to vindicate their rights. The Due Process Clause

of the Fifth Amendment contemplates that no person will

be deprived of life, liberty or property without first hav-

ing a meaningful opportunity to cross-examine witnesses

and confront the evidence of an adverse party. The right

to due process “is conferred, not by legislative grace, but

by constitutional guarantee.” Cleveland Board of Education

v. Loudermill, 470 U.S. 532, 541 (1985). It is a guarantee

that this Honorable Court has been “zealous” to protect

Pee ae ane oF Tee

iM PAS Ho GROG

from erosion — “not only in criminal cases . . . but in all

types of cases where administrative and regulatory

actions were under scrutiny.” Greene v. McElroy, 360 U.S.

474, 497 (1959); Goldberg v. Kelly, 397 U.S. 254, 270 (1970).

Petitioners request this Court to honor that guarantee.

This is a case fraught with significant reversible error

at every level. In recommending that the employer’s

motion for summary judgment be granted, the ALJ relied

upon an erroneous construction of ERA 211(g) and

weighed the evidence as to whether petitioners caused a

violation. The Board subsequently employed the correct

construction of 211(g), but went on to grant summary

judgment, without benefit of a trial or evidentiary hear-

ing, on the grounds that petitioners acted with “reckless

disregard” as to whether their acts would cause a viola-

tion of law, despite the existence of evidence (and “irrefu-

table facts”) in the record to the contrary. The Court of

Appeals affirmed the Board’s erroneous summary judg-

ment, and compounded the error by crafting an unprece-

dented and unconstitutional exception to the de novo

standard of review for summary judgment motions.

These errors have deprived petitioners of their guaran-

teed Fifth Amendment due process rights.

The summary judgment was entered pursuant to 29

C.F.R. 18.40 and 18.41. Because those regulations impose

the same requirements as Federal Rule of Civil Procedure

56 (App. 18-19, 67), a summary judgment entered pur-

suant to 18.40 and 18.41 must receive the same standard

of review on appeal as a summary judgment entered

pursuant to Rule 56. See generally Agosto v. Immigration

and Naturalization Service, 436 U.S. 748, 756-758 (1978)

(where the applicable statutory language was virtually

identical to summary judgment requirements of Rule 56,

Congress intended the language to be interpreted sim-

ilarly to that of Rule 56 and summary judgment princi-

ples are controlling); Puerto Rico Aqueduct & Sewer

Authority v. U.S. Environmental Protection Agency, 35 F.3d

600, 607 (1st Cir. 1994), cert. den., 513 U.S. 1148 (1995)

(Rule 56 is the prototype for administrative summary

judgment procedures, and jurisprudence concerning that

rule is the most fertile source of information about sum-

mary judgments); John D. Copanos & Sous, Inc. v. Food &

Drug Admin., 854 F.2d 510, 523 (D.C. Cir. 1988) (case law

governing summary judgment applies with equal force in

the context of administrative cases).

This Court and all other federal appellate courts

(including the Eleventh Circuit) universally hold that

summary judgments are reviewed de novo, applying the

same standards as the lower tribunal. See, e.g., Eastman

Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 466

(1992); Dominique v. Weld, 73 F.3d 1156, 1158 (1st Cir.

1996); Bedoya v. Coughlin, 91 F.3d 349, 351 (2d Cir. 1996);

Olson v. General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir.

1996); Higgins v. E.I. Du Pont de Nemours & Co., 863 F.2d

1162, 1167 (4th Cir. 1988); King v. Ames, 179 F.3d 370, 373

(5th Cir. 1999); Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.

1996), cert. den., 519 U.S. 1055 (1997); Wilson v. Williams,

997 F.2d 348, 350 (7th Cir. 1993); McCaslin v. Wilkins, 183

F.3d 775, 778 (8th Cir. 1999); Provenz v. Miller, 102 F.3d

1478, 1483 (9th Cir. 1996), cert. den., 118 S.Ct. 48 (1997);

Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.

1998); Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913,

918 (11th Cir.1993); National Wildlife Federation v. Browner,

127 F.3d 1126, 1128 (D.C. Cir. 1997). The foregoing list of

cases is by no means exhaustive; a simple Westlaw search

will reveal that there are literally thousands of appellate

court decisions that apply the de novo standard of review

to summary judgments. Even the Board, at pages 23-24 of

its answer brief below, acknowledged that the summary

judgment entered against Petitioners is subject to the de

novo standard of review. The Court of Appeals’ decision

below represents a gross departure from this unani-

mously accepted standard of review by carving out an

unprecedented and unconstitutional exception, which

would allow summary judgments entered by administra-

tive agencies to be affirmed if they are “reasonable and

supported by substantial evidence contained in the

record.”

The Court of Appeals’ opinion twice acknowledges

that the Board granted a summary judgment motion

(App. 2, 4), but then inexplicably and inaccurately states

that this occurred “[a]fter an evidentiary hearing” (App.

4). Contrary to the opinion below, a “proceeding on

motion for summary judgment is not a trial but in the

nature of an inquiry in advance of trial for the purpose of

determining whether there is a genuine issue of fact.”

Hurd v. Sheffield Steel Corp., 181 F.2d 269, 271 (8th Cir.

1950) (emphasis added). Thus, perhaps based on its mis-

taken notion that an evidentiary hearing occurred, the

Court of Appeals rejected the de novo standard of review,

and instead, applied the substantial evidence standard of

review, which appellate courts use to review factual

determinations reached at a trial or evidentiary hearing

after a finder of fact weighs conflicting evidence.

In applying the “substantial evidence” test, the Court

of Appeals cites to Kahn v. Secretary of Labor, 64 F.3d 271

(7th Cir. 1995) and Cornelius v. Sullivan, 936 F.2d 1143

(11th Cir. 1991), among other cases. (App. 5). However, in

every case cited, there was an evidentiary hearing con-

ducted, wherein the parties had the opportunity to pre-

sent evidence and cross-examine witnesses. None of the

cited cases involved a summary judgment. Petitioners

filed a motion for rehearing which, among other things,

reminded the Court of Appeals that there had been no

evidentiary hearing, but the motion was denied without

explanation (App. 7-8).

The substantial evidence standard does not apply to

the appellate review of summary judgments. Indeed, the

standards for reviewing a summary judgment and a judg-

ment based on an evidentiary hearing, are at opposite

ends of the spectrum. When reviewing a decision based

on an evidentiary hearing, the appellate court does not

reweigh the evidence or substitute its judgment for the

lower tribunal, but views the evidence in the light most

favorable to the appellee and must affirm if there is record

evidence to support the lower tribunal’s decision. See, e.g.,

Cornelius, 936 F.2d at 1145. In contrast, when reviewing a

summary judgment, the appellate court views the evi-

dence in the light most favorable to the appellant and

must reverse if there is record evidence that does not

support the lower tribunal’s decision. See, e.g., U.S. v.

Diebold, Inc., 369 U.S. 654, 655 (1962); Matsushita Elec.

Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-59

(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

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Dominique, 73 F.3d at 1158; McCaslin, 183 F.3d at 778;

Hartsel, 87 F.3d at 799.

The same de novo review applies in the context of

administrative summary judgments, as confirmed by this

Court’s decisions in Agosto and Weinberger v. Hynson,

Westcott & Dunning, Inc., 412 U.S. 609 (1973). Agosto

involved the question of whether a petitioner was enti-

tled to a de novo determination of his claim for citizenship

under the Immigration and Nationality Act, 8 U.S.C.

1105(a)(5)(B) (1976 ed.). Noting that the applicable statu-

tory language was “virtually identical” to the summary

judgment requirements of Rule 56, this Court held that

“Congress intended the language to be interpreted sim-

ilarly to that in Rule 56.” Agosto, 436 U.S. at 754. Thus, the

Court explained that the agency’s summary decision was

subject to de novo review at the appellate level:

Since summary judgment principles are control-

ling here, it follows that a court of appeals can-

not refuse to allow a de novo review of a

citizenship claim if the evidence presented in

support of the claim would be sufficient to enti-

tle a litigant to trial were such evidence pre-

sented in opposition to a motion for summary

judgment. More specifically, just as a district

court generally cannot grant summary judgment

based on its assessment of the credibility of the

evidence presented . . . so too a court of appeals

is not at liberty to deny an individual a de novo

hearing on his claim for citizenship because of

the court’s assessment of the credibility of the

evidence. . . . Particularly where the evidence

consists of the testimony of live witnesses con-

cerning material factual issues, it will seldom if

ever be appropriate to deny a de novo hearing,

since “[iJt is only when the witnesses are pre-

sent and subject to cross-examination that their

credibility and the weight to be given to their

testimony can be appraised.”

Applying the appropriate standard to the

record in this case, it is apparent that the Court

of Appeals erred when it failed to transfer the

case to the District Court for a de novo hearing.

The Service’s proof that petitioner is not a

United States citizen would certainly be suffi-

cient, if uncontradicted, to establish his birth in

Agrigento, Italy, in July 1927. However, the evi-

dence adduced by petitioner to support his

claim of American citizenship creates “genuine

issue[s] of material fact” that can only be

resolved in a de novo hearing in the District

Court.

Agosto, 436 U.S. at 758 (citations omitted).

In Hynson, this Court examined the Food and Drug

Administration’s administrative summary judgment pro-

cedure whereby the agency made summary determina-

tions on whether applicants seeking approval of new

drugs were entitled to an evidentiary hearing. The Court

went on to explain that the substantial evidence standard

of review only applies to agency determinations which

are based on an evidentiary hearing:

Under the Administrative Procedure Act, a

court reviews agency findings to determine

whether they are supported by substantial evi-

dence only in a case subject to the hearing provi-

sions of 5 U.S.C. §§ 556 and 557 or “otherwise

; ’

AEE GAIN OSA A LD EEO ELE ALE AT PIRSA 9

“ee

reviewed on the record of any agency hearing pro-

vided by statute. ...” 5 U.S.C. § 706(2)(E) ....

Hynson, 412 U.S. at 622, n. 19 (emphasis added).

Accordingly, the Court of Appeals’ rejection of the de

novo standard of review and reliance on the substantial

evidence test to affirm the Board’s summary judgment is

in irreconcilable conflict with the precedent of its sister

courts and of this Court, and represents a gross departure

from the accepted and usual course of judicial proceed-

ings. The Court of Appeals’ opinion also establishes a

dangerous new precedent, which could be relied upon to

erode and deny the fundamental due process guarantee

which this Court is sworn to zealously protect and which

serves as foundation of our justice system.

In his famous argument to this Court in the case of

Trustees of Dartmouth College v. Woodward, 17 U.S. 518

(1819), Daniel Webster declared that due process of law

means “a law which hears before it condemns; which

proceeds upon inquiry, and renders judgment only after

trial.” Like Mr. Webster, this Court has recognized that

“It]he fundamental requirement of due process is the

opportunity to be heard.” Goldberg, 397 U.S. at 267. “The

hearing must be ‘at a meaningful time and in a meaning-

ful manner.’ ” Goldberg, citing Armstrong v. Manzo, 380

U.S. 545, 552 (1965). See also Brock v. Roadway Express, Inc.,

481 U.S. 252 (1987); Mathews v. Eldridge, 424 U.S. 319, 333

(1976). The opportunity to be heard must be full and fair,

not merely colorable or illusive. Ryan’s Furniture

Exchange, Inc. v. McNair, 162 So. 483, 487 (Fla. 1935).

Administrative agencies are not permitted to ignore

the guarantee of due process. “[W]hen governmental

agencies adjudicate or make binding determinations

which directly affect the legal rights of individuals, it is

imperative that those agencies use the procedures which

have traditionally been associated with the judicial pro-

cess.” Hannah v. Larche, 363 U.S. 420, 442 (1960). “In the

administrative context, due process requires that inter-

ested parties be given a reasonable opportunity to know

the claims of adverse parties and an opportunity to meet

them.” North Alabama Express, Inc. v. U.S., 585 F.2d 783

(5th Cir. 1978) (emphasis added). The right of confronta-

tion “is especially important” to administrative pro-

cedures where credibility disputes exist. Cuellar v. Texas

Employment Comm., 825 F.2d 930, 935 (5th Cir. 1987), citing

Greene, 360 U.S. at 496.

It has been held that “[d]ue process simply does not

require an agency to convene an evidentiary hearing

when it appears conclusively from the papers that, on the

available evidence, the case can only be decided one

way.” Puerto Rico Aqueduct, 35 F.3d at 606, citing, Hynson,

412 U.S. at 621. However, petitioners submit that the

converse of this proposition is also true — due process does

require an agency to convene an evidentiary hearing

when it does not appear conclusively from the available

evidence that the case can only be decided one way.

“It is not the purpose of a summary judgment to

deny to litigants a right of trial if they really have issues

to try.” National Screen Service Corp. v. Poster Exchange,

Inc., 305 F.2d 647, 651 (5th Cir. 1962), citing Sartor v.

Arkansas Natural Gas Corp., 321 U.S. 620 (1944); Associated

Press v. U.S., 326 U.S. 1 (1945); Eccles v. People’s Bank of

Lakewood Village, 333 U.S. 426 (1948). Accordingly, rules

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authorizing summary judgment “should be invoked cau-

tiously in order to allow a full trial where there is a bona

fide dispute of facts between the parties.” National Screen,

305 F.2d at 651. “Great caution should be exercised in

granting a summary judgment because it borders on the

denial of due process.” Podlesak v. Wesley, 849 S.W.2d 728,

731 (Mo. App. S.D. 1993), citing, Olson v. Auto Owners Ins.

Co., 700 S.W.2d 882, 884 (Mo. App. 1985). A summary

judgment which is granted despite the existence of genu-

ine issues of material fact, clearly crosses that border and

violates due process.

In Johnson Foils, Inc. v. Huyuck Corp., 61 F.R.D. 405,

407 (N.D.N.Y. 1973), the court observed:

Summary judgment is a very drastic remedy. It

says to the losing party that the court is so

certain that nothing you have said even raises a

material issue that you will be denied an oppor-

tunity to have a day in court on your claims.

. . » The emphasis in a motion for summary

judgment is that a court must be certain that it is

not depriving a party of the fundamental right to a

trial.

(Emphasis added). See also Heyman v. Commerce & Industry

Ins. Co., 524 F.2d 1317 (2d Cir. 1975) (summary judgment

is a drastic device since its prophylactic function, when

exercised, cuts off a party’s right to present his case to the

jury).

Appellate courts often describe summary judgment

as a drastic remedy and instruct trial judges to exercise

caution in granting one, because the erroneous entry of a

summary judgment deprives the nonmoving party of his

or her due process right to a trial. For example, in Doehler

Metal Furniture Co. v. U.S., 149 F.2d 130, 135 (2d Cir. 1945),

the court stated that summary judgment, when “wisely

used, is a praiseworthy time-saving device” but warned

the trial court that “[a] litigant has a right to a trial where

there is the slightest doubt as to the facts, and a denial of

that right is reviewable.” Id. The court also observed that

the “[dJenial of a trial on disputed facts is worse than

delay.” Similarly, in New York Life Ins. Co. v. Brown, 84 F.3d

137, 143 (5th Cir. 1996), the court held that a summary

judgment entered without proper notice deprived the

nonmoving party of due process and was void.

Because an improvidently granted summary judg-

ment robs the nonmoving party of his due process right

to present live testimony, cross-examine witnesses, and

otherwise confront his opponent’s evidence, 29 C.F.R.

18.41(b) mandates that the ALJ “shall .. . set the cause for

an evidentiary hearing” if “a genuine issue of material

fact is raised” by the nonmoving party. Absent this man-

date, due process is denied.

Accordingly, a summary judgment for the employer

would have only been appropriate if the pleadings, affi-

davits, and discovery materials in the record established

that no genuine issue of material fact exists on its affirma-

tive defense that petitioners “deliberately” caused a vio-

lation of the ERA or the Atomic Energy Act. 29 C.F.R.

18.40(d). See also, e.g., Fed. R. Civ. P. 56(c); Celotex, 477

U.S. at 322. Neither the ALJ, nor the Board, nor the Court

of Appeals were permitted to weigh the evidence, but

were instead required to determine whether a genuine

issue exists for trial. Liberty Lobby, 477 U.S. at 249.

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At this juncture, it is important to note that “[i]ssues

of motive and intent are usually inappropriate for dispo-

sition on summary judgment.” Wechsler v. Steinberg, 733

F.2d 1054, 1058 (2d Cir. 1984). As the Eleventh Circuit

itself has observed:

The court should be cautious in granting a

motion for summary judgment when resolution

of the dispositive issue requires a determination

of state of mind. Much depends on the credibility of

the witnesses testifying as to their own states of

mind. In these circumstances the [fact finder] should

be given the opportunity to observe the demeanor,

during direct and cross-examination, of the wit-

nesses whose states of mind are at issue.

Sammons v. Taylor, 967 F.2d 1533, 1545 (11th Cir. 1992)

(emphasis added), quoting Croley v. Matson Navigation Co.,

434 F.2d 73, 77 (5th Cir. 1970). Accord In re Varrasso, 37

F.3d 760, 764 (1st Cir. 1994); Provenz, 102 F.3d at 1489.

At the core of due process is the requirement that a

litigant be permitted to make a live presentation of his or

her evidence to the fact finder. As this Court observed in

Goldberg, “In almost every setting where important deci-

sions turn on questions of fact, due process requires an

opportunity to confront and cross-examine adverse wit-

nesses.” Id., 397 U.S. at 269. Thus, it follows that when

issues of credibility and veracity are at stake, “written

submissions are a wholly unsatisfactory basis for decision.”

Id: (emphasis added).

In this case, petitioners were never given the oppor-

tunity to have the ALJ, as fact finder, observe their

demeanor as they testified concerning their own states of

mind, or observe the demeanor of their adversary’s wit-

nesses as they were cross-examined. Under these circum-

stances, it was “wholly unsatisfactory” and a denial of

due process for the Board to weigh evidence depicted by

a cold written transcript to reach a determination that

petitioners acted with “reckless disregard” of whether

their actions would cause a violation of law. The Court of

Appeals took the Board’s improper factual determination

one step further by concluding:

It is clear from the record that, regardless of

their motives, good or bad, petitioners moved

knowingly and dangerously beyond their authority

when, on their own, and fully aware that their

employer would not approve, they conducted

experiments inherently fraught with danger.

(App. 6; emphasis added). In this regard, the Court of

Appeals’ opinion is internally inconsistent with its prior

recap of the record, which states:

They [petitioners] contend that they believed the

tests complied with existing procedures and were

within their authority to perform. Petitioners claim

that, as licensed nuclear operators, they owed a

duty to the public to verify a critical safety issue

that they believed was being ignored by FPC.

(App. 3; emphasis added). The record contains additional

support for petitioners’ beliefs, including the affidavit of

NRC inspector Larry King (R26, Ex. 71), the NRC’s find-

ings that another shift supervisor held the same belief

(R36: Ex. 50-21-23), the deposition testimony of every

person on Field’s crew, and the ALJ’s “irrefutable facts.”

Under the substantial evidence test, the Court of

Appeals’ evaluation of the conflicting record evidence

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may have been permissible. However, under the appro-

priate de novo summary judgment standard of review, the

evidence should have been evaluated in the light most

favorable to petitioners. De novo review would have

revealed genuine issues of material fact and reversible

error. The Eleventh Circuit had a duty to correct the error

and preserve petitioners’ guaranteed due process rights.

Petitioners pray this Court will honor that guarantee by

granting certiorari and preventing the Court of Appeals’

error from supplying precedent for future due process

violations.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

Davip MicHaet CALDEVILLA

Counsel of Record

Davip Dattas Dickey

DE LA Parte, Gitpert & Bates, P.A.

101 East Kennedy Boulevard

Suite 3400

Post Office Box 2350

Tampa, Florida 33601-2350

Telephone: (813) 229-2775

Attorneys for Petitioners

Date: September 24, 1999

;

APPENDIX

Court of Appeals’ Decision................ App. 1

Court of Appeals’ Order Denying Petition for

Rehearing and Rehearing En Banc.......... App. 7

Administrative Review Board’s Final Decision

and Order

Administrative Law Judge’s Recommended

Decision and Order Granting Respondent’s

Motion for Summary Decision............. App. 39

App. 1

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-2614

D.C. Docket No. 97-070(ARB); 96-ERA-22(ALJ)

DAVID A. FIELDS, ROBERT P. WEISS, et al.,

Petitioners,

versus

UNITED STATES DEPARTMENT OF LABOR

ADMINISTRATIVE REVIEW BOARD,

Respondent.

Appeal from a Final Decision and Order of the

United States Department of Labor’s

Administrative Review Board

(April 21, 1999)

Before MARCUS, Circuit Judge, HILL, Senior Circuit

Judge, and ADAMS*, District Judge.

PER CURIAM:

Petitioners David A. Fields, Robert P. Weiss and Jack

D. Stewart appeal the final decision and order issued by

* Honorable Henry Lee Adams, Jr., U.S. District Judge for the

Middle District of Florida, sitting by designation.

App. 2

the Administrative Review Board (ARB) of the Depart-

ment of Labor (DOL), accepting the recommendation of

the DOL Administrative Law Judge (ALJ), granting Flor-

ida Power Corporation’s (FPC) request for summary deci-

sion and dismissing petitioners’ complaints under the

employee protection (or whistleblower) provision, Sec-

tion 211, of the Energy Reorganization Act of 1974 (ERA),

as amended, 42 U.S.C. § 5851(1)(D) (1988).! The provi-

sions subsumed under Section 211 prohibit an employer

from discharging or discriminating against an employee

who has engaged in protected activities. Petitioners con-

tend that the ARB’s finding that their complaints were

barred under the affirmative defense provision of Section

211(g)? is not supported by substantial evidence. We dis-

agree and affirm.

1 Section 211(a), 42 U.S.C. § 5851(a), provides in relevant

part:

(1) No employer may discharge any employee or

otherwise discriminate against any employee with

respect to his compensation, terms, conditions, or

privileges of employment because the employee .. .

(A) notified his employer of an alleged violation of

this Act or the Atomic Energy Act of 1954 (42 U.S.C.

§ 2011 et seq.);

* * *

2 Section 211(g), 42 U.S.C. § 5851(g), provides:

Subsection (a) of this section [prohibiting

discrimination] shall not apply with respect to any

employee who, acting without direction from his or

her employer (or the employer’s agent), deliberately

causes a violation of any requirement of this chapter

or of the Atomic Energy Act of 1954, as amended [42

U.S.C. § 2011 et seq.].

App. 3

Petitioners were control room operators at FPC’s

Crystal River 3 nuclear power plant (the plant). They

were concerned that maintaining hydrogen pressure in

accordance with FPC’s mandated procedure (designated

Curve 8%) was unsafe and notified the engineering

department. They were not satisfied with the engineering

department’s assurance that maintaining pressure accord-

ing to Curve 8 was “accurate and reasonably conserva-

tive.” Petitioners felt that their safety concerns had not

been adequately addressed and that they needed to

respond. In order to obtain data that would show

whether their concerns about Curve 8 were valid, peti-

tioners decided to conduct their own tests. They contend

that they believed the tests complied with existing pro-

cedures and were within their authority to perform. Peti-

tioners claim that, as licensed nuclear operators, they

owed a duty to the public to verify a critical safety issue

that they believed was being ignored by FPC.

The undisputed facts are that in September 1994,

petitioners performed tests on the plant’s nuclear reactor

during two midnight shifts, while the nuclear reactor was

operating at full power. On the first night, September 4,

their actions triggered an alarm light for forty-three min-

utes. Petitioners ignored the alarm and continued. When

the September 4 data proved inconclusive, they tried

again. On the second night, September 5, petitioners told

an auxiliary building operator to “dress out” in protective

clothing, to allow him to vent hydrogen quickly should

* For further background and description as to the nuclear

tests performed, refer to the background section of the ARB’s

Final Decision and Order dated March 1, 1998.

App. 4

an accident occur. This time the alarm light was triggered

for thirty-five to thirty-seven minutes.

Following the September 5 test, petitioners prepared

a problem report. They did not mention the September 4

test. In response to the problem report, FPC transferred

petitioners to positions other than as control room opera-

tors. The Nuclear Regulatory Commission (NRC) insti-

tuted an investigation. When FPC subsequently learned

of the September 4 test, it discharged Weiss and Fields

and transferred Stewart out of operations with a written

reprimand.

Thereafter petitioners filed this Section 211 discrimi-

nation action with the DOL, alleging that FPC disciplined

them, demoted Stewart, and discharged Fields and Weiss

because they were engaging in activities protected under

the ERA. After an evidentiary hearing, the DOL ALJ

concluded that the undisputed facts provided over-

whelming evidence that petitioners had acted deliber-

ately and without direction from FPC management when

they twice conducted unauthorized tests on the nuclear

reactor. He issued a recommended decision and order

granting FPC’s motion for summary decision. Petitioners

appealed to the ARB. In its final decision and order, the

ARB accepted the recommendation of the ALJ, conclud-

ing that FPC’s decision to discharge and demote peti-

tioners was based upon petitioners’ “reckless disregard”

as to whether a nuclear safety violation would occur and

that they “deliberately caused a violation” of nuclear

safety regulations. Finding no genuine issue of material

fact, the ARB determined that FPC had established a

valid Section 211(g) affirmative defense as a matter of law

and dismissed the complaints. Petitioners now complain

App. 5

that the ARB erred in finding that they had acted without

direction from FPC deliberately to cause violations of

NRC requirements.

In reviewing cases arising under the ERA, we are

required to conform to the standard of review set forth in

the Administrative Procedure Act. 42 U.S.C. § 5851(c)(1).

Thus the ARB decision will be overturned only if it “is

unsupported by substantial evidence or if it is arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A), (E); Kahn v.

Secretary of Labor, 64 F.3d 271, 276 (7th Cir. 1995) (citing

Lockert v. U.S. Dep’t of Labor, 867 F.2d 513, 516-17 (9th Cir.

1989)); see also Stone & Webster Engineering Corp. v. Her-

man, 115 F.3d 1568, 1571 (11th Cir. 1997). The substantial

evidence test is no more than a recitation of the applica-

tion of the ‘arbitrary and capricious’ standard to factual

findings. Atlanta Gas Light Co. v. FERC, 140 F.3d 1392,

1397 (11th Cir. 1998). Appropriate deference must be

given to statutory interpretation by the ARB. See Stone &

Webster, 115 F.3d at 1571 (citing Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984);

Bechtel Construction Co. v. Sec. of Labor, 50 F.3d 926, 931

(11th Cir. 1995)). The reviewing court does not reweigh

the evidence or substitute its judgment for that of the

ARB, but reviews the entire record to determine if the

decision reached is reasonable and supported by substan-

tial evidence. Cornelius v. Sullivan, 936 F.2d 1143, 1145

(11th Cir. 1991).

It is clear from the record that, regardless of their

motives, good or bad, petitioners moved knowingly and

dangerously beyond their authority when, on their own,

and fully aware that their employer would not approve,

App. 6

they conducted experiments inherently fraught with dan-

ger. The tests conducted during the midnight shifts were

expected by petitioners to produce conditions sufficiently

perilous to set off alarms. While it is possible that they

meant, by their actions, to demonstrate that prescribed

FPC policy was dangerous, it is clear that petitioners’

unauthorized frolics were just what Congress envisioned

when it made the whistleblower statute inapplicable to

“any employee who, acting without direction from his or

her employer (or the employer’s agent), deliberately

causes a violation of any requirement of this chapter... . ”

Section 211(g), 42 U.S.C. § 5851(g).

Giving appropriate deference to the ARB’s inter-

pretation of the statute, Stone & Webster, 115 F.3d at 1571,

we conclude that its determination was reasonable and

supported by substantial evidence contained in the

record. Cornelius, 936 F.2d at 1145. We affirm the decision

of the ARB.

AFFIRMED.

App. 7

IN THE UNITES STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-2614

DAVID A. FIELDS, ROBERT P. WEISS, et al.,

Petitioners,

versus

UNITED STATES DEPARTMENT OF LABOR

ADMINISTRATIVE REVIEW BOARD,

Respondent.

Appeal from a Final Decision and Order

of the United States Department of

Labor’s Administrative Review Board

(Filed Jun. 28, 1999)

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

(Opinion , Both Che, 19... ... R20 __).

BEFORE: MARCUS, Circuit Judge, HILL, Senior Circuit

Judge, and ADAMS", District Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no mem-

ber of this panel nor other Judge in regular active service

on the Court having requested that the Court be polled

* Honorable Henry Lee Adams, Jr., U.S. District Judge for the

Middle District of Florida, sitting by designation.

App. 8

on rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Petition(s) for

rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ James C. Hill

UNITED STATES CIRCUIT JUDGE

U.S. Department of

Labor

In the Matter of:

DAVID A. FIELDS,

ROBERT P. WEISS, and

JACK D. STEWART,

COMPLAINANTS,

FLORIDA POWER

CORPORATION,

RESPONDENT.

App. 9

Administrative Review

Board

200 Constitution Avenue,

N.W.

Washington, D.C. 20210

[SEAL]

ARB CASE NO. 97-070

ALJ CASE NO. 96-

ERA-22

DATE: MAR 13 1998

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

FINAL DECISION AND ORDER

This case arises under Section 211, the employee

protection provision of the Energy Reorganization Act of

1974, as amended (ERA

), codified at 42 U.S.C. § 5851

(1988 and Supp. V 1993).! David A. Fields (Fields) and

1 Section 211(a), 42 U.S.C. § 5851(a), provides in relevant

part:

(1) No employer may discharge any employee or

otherwise discriminate against any employee with

respect to his compensation, terms, conditions, or

privileges of employment because the employee...

(A) notified his employer of an alleged violation of

this Act or the Atomic

2011 et seq.);

Energy Act of 1954 (42 U.S.C.

App. 10

Robert P. Weiss (Weiss) alleged that Florida Power Corpo-

ration (FPC or Florida Power) violated the ERA when it

discharged them from employment. Jack D. Stewart

(Stewart) alleges that his demotion violated the ERA.?

In a Recommended Decision and Order (R. D. and

O.), the Administrative Law Judge (ALJ) granted FPC’s

motion for summary decision, which was based upon

subsection (g) of Section 211 (Section 211 (g)), on the

ground that Complainants deliberately caused a violation

of the ERA and were not entitled to its protection for

whistleblowers.* The ALJ articulated a three part test for

establishing a Section 211 (g) defense and applied it to

the facts of this case. We modify the ALJs statement of the

“test” to be applied to a Section 211 (g) defense, find that

FPC has established the defense in this case, and dismiss

the complaint.

2 We will refer to Fields, Weiss, and Stewart collectively as

“Complainants.”

3 Section 211 (g) provides in relevant part:

Subsection (a) of this section shall not apply with

respect to any employee who, acting, without

direction from his or her employer (or the employer's

agent), deliberately causes a violation of any

requirement of this chapter [the ERA] or of the

Atomic Energy Act of 1954... .

42 U.S. C. § 5851 (g). Section 211 (g) provides an affirmative

defense on which the respondent bears the burden of proof. See

James v. Ketchikan Pulp Co., Case No. 94-WPC-4, Sec. Final Dec.

and Ord., Mar. 15, 1996, slip op. at 6 (stating that the respondent

did not show by a preponderance of evidence that the

complainant deliberately caused a violation).

App. 11

BACKGROUND*‘

Fields was a Nuclear Shift Supervisor at the Crystal

River 3 nuclear plant (CR-3) in Florida, which FPC oper-

ates. Complaint at p. 1 (C. at 1).5 Weiss was an Assistant

Shift Supervisor and Stewart was one of two Chief

Nuclear Operators under Fields’s direction. The three

Complainants, who held reactor operator licenses issued

by the Nuclear Regulatory Commission (NRC), worked

together as control room operators on the “A Shift” at

CF-3. C. at 2.

One of the responsibilities of control room operators

is to monitor the level of hydrogen pressure in a storage

vessel called the Makeup Tank (MUT), which is part of

the makeup system at the plant. C. at 4. The makeup

system is designed to maintain water levels in the reactor

coolant system and is one of the primary safety systems

in the event of a loss of coolant accident. C. at 4-5.

Prior to April 1993, the hydrogen pressure in the

MUT was maintained below a limit of 12 psig. C at 6 and

CX 6. That month, FPC issued a new calculation, called

* Since the recommendation to dismiss this case was made

on summary grounds and determination of disputed factual

issues is not necessary to render this decision, we do not make

any factual findings.

° Reference is to the complaint filed by Fields. Weiss and

Stewart filed shorter complaints that incorporated Fields’

lengthier complaint and attachments.

Complaint and to their opposition to the motion for summary

decision; “RX” refers to Respondent's exhibits attached to its

motion.

App. 12

Curve 8, that varied the amount of hydrogen pressure

according to the amount of water in the MUT. Under the

new Curve 8, the more water there was in the MUT, the

higher the amount of hydrogen pressure allowed. C at 6-7

and CX 2. FPC management instructed control room

operators to maintain the hydrogen pressure in the MUT

at the maximum level allowed by the new Curve 8. C. at

FPC considered Curve 8 to be a conservative “operat-

ing curve” because it supposedly included a margin of

error and was presumed to be well within the “design

basis” requirements of a nuclear power plant. C. at 7.

Merely exceeding an operational curve is not a violation

of a nuclear safety requirement. In contrast, when a

design basis is exceeded, the company must correct the

problem immediately, report the event within one hour to

the NRC, and issue a Licensee Event Report within 30

days. C. at 8.

Complainants were concerned that maintaining

hydrogen pressure in accordance with Curve 8 was

unsafe and notified the Engineering Department and the

Manager of Nuclear Operations, Greg Halnon. C. at 9.

Complainants were not satisfied with the Department's

assurance that maintaining pressure according to Curve 8

was safe. Id.

On May 10, 1994, during the performance of a sched-

uled test procedure ordered by management, the A shift

operators plotted the MUT’s actual tank response and

pressure levels when draining the tank and noted that

pressure levels were tending towards the unacceptable

region in Curve 8. C. at 10. Complainants’ coworker,

App. 13

Mark VanSicklen, prepared a Problem Report informing

managers about the concern with Curve 8 and included

the actual data obtained during the test. C. at 10 and CX

FPC managers continued to direct CR-3 operators to

maintain the maximum hydrogen pressure allowed under

Curve 8. C. at 11; CX 4, 5. The A Shift operators contin-

ued to raise concerns about Curve 8 with their managers

to no effect. C. at 13. VanSicklen raised the issue with the

NRC resident inspector, who suggested that if Complain-

ants did not like management’s response, they should

submit a formal allegation to the NRC. C. at 15.

On September 2, 1994, Operations Support Manager

Carl Bergstrom showed Fields a draft memorandum from

Engineering stating that Curve 8 was accurate, “reason-

ably conservative,” and safe, and that the issue would be

closed. C. at 15 and CX 9. A handwritten notation on the

memorandum indicated that it was a “draft recommenda-

tion” and that Fields should review it and provide com-

ments to his immediate supervisor, Halnon. CX 9.

The A Shift operators discussed an appropriate

response to the draft letter closing out the Problem

Report on Curve 8. C. at 16. They decided to conduct an

operational “evolution,” not required by plant conditions,

to obtain data that would show whether their concerns

about Curve 8 were valid. No one consulted the Engi-

neering Department, FPC managers, or the NRC concern-

ing the plan. Complainants believed that the planned

evolution comported with existing procedures and was

within their authority to perform. C. at 16-17.

App. 14

The operators added hydrogen to the MUT when it

was at the maximum water level. C. at 20. Their actions

triggered a control room annunciator alarm light

(“Makeup Tank Pressure High”), indicating that the tank

pressure was too high for the level of water. C. at 18.

Complainants kept the hydrogen pressure constant while

they rapidly reduced the water level. Therefore, the alarm

light continued to be triggered for 43 minutes.”

The data gathered during the September 4 evolution

was inconclusive and Complainants decided to try the

evolution again the next night. C. at 20-23. Again, Com-

plainants did not notify managers or the NRC of their

intent to perform an unscheduled evolution.

On September 5 the Complainants told the auxiliary

building operator to “dress out,” or wear protective

clothing that would allow him quickly to vent hydrogen

fron. the MUT should a loss of coolant accident occur

during the evolution. C. at 23. The Complainants again

added hydrogen to the MUT when it was at its upper

limit of water. This time they waited 30 minutes before

reducing the water level and the annunciator alarm light

was triggered after the water reduction began. Id. The

alarm was triggered for 35 to 37 minutes during the

September 5 evolution. Compare C. at 23 and R. D. and O.

at 4, { 9.

At the time of the evolutions, although Complainants

suspected that Curve 8 was nonconservative, they did not

7 CR-3 Annunciator Response procedure AR-403 requires

operators to reduce pressure to within acceptable limits upon

receipt of an alarm. CX 10.

App. 15

know that it was a design basis that should never be

: exceeded. C. at 7, 27. The data from the September 5

evolution showed that the actual system response

4 exceeded the limits of Curve 8 and eventually led to the

Engineering Department’s acknowledgment that the

curve was a design basis curve. C. at 26-28.

Complainants prepared a Problem Report following

the September 5 evolution. C. at 24; CX 14. The Problem

Report did not mention the September 4 evolution, C. at

25-26, although Weiss did voluntarily inform a superior,

Senior Licensing Engineer Paul Fleming, about it. C. at

26. Fields and Weiss did not include the first evolution in

a written chronology of events, C. Ex. 18, or mention it in

numerous meetings with FPC managers and attorneys. C.

at 40; Fields Dep. at 257. In response to the September 5

incident, FPC took the A Shift operators “off shift,” which

meant that they no longer operated a reactor. C. at 34.

Fields was reassigned to the position of support shift

supervisor, an administrative position. C. at 38. Weiss

was transferred to another position as well. Id.

sit Saari aa nia ocead

pte lg bine EON er tes ee eI S

In response to FPC’s notification of the September 5

evolution, the NRC’s Office of Investigations (NRC-Ol)

instituted an investigation. Complainants did not tell

NRC-OI staff about the earlier evolution.® RX 53, 54, 55.

® Prior to the meetings with NRC-OI staff, Fields told Weiss

that he would not mention the September 4 evolution unless

NRC-OI investigators asked him about it. Fields Dep. at 260;

Weiss Dep. at 263. Complainants attribute this reticence to the

advice of FPC counsel not to volunteer information to the NRC.

C. at 47; Weiss Dep. at 263.

App. 16

FPC allowed Fields to review a draft letter to the

NRC explaining, the September 5 evolution. C. at 41.

Fields and Weiss disagreed strongly with the tenor of the

letter, which completely blamed them for the two

unauthorized evolutions, and Fields told managers that

he would write his own letter to the NRC. Id.; see also CX

34 (FPC letter to NRC) and CX 35 (Fields letter to NRC).

When an FPC manager told Fields there were rumors

of a second unauthorized evolution, Fields informed

management in July 1995 for the first time about the

September 4 evolution. C. at 47. FPC immediately placed

the Complainants on administrative leave. C. at 49. The

company discharged Fields and Weiss “for violation of

procedures and failure to disclose the full intent, details,

and existence of the September 4, 1994 test for nearly 11

months following occurrence.” C. at 50 and CX 45. For his

role in the unauthorized evolutions, Stewart was trans-

ferred to a position outside of operations and received a

written reprimand. Id.

In its report, the NRC-OI report found that:

the shift supervisor, assistant shift supervisor,

and two chief operators on the midnight shift of

September 4 and 5, 1994, deliberately conducted

an evolution, not required by plant conditions,

for the specific purpose of gathering data. Fur-

thermore, when the allowable makeup tank over

pressure was exceeded, the operators deliber-

ately delayed taking appropriate action to

reduce makeup tank over pressure while gather-

ing that data.

RX 64, Synopsis, at 1.

App. 17

A later NRC Notice of Violation and Imposition of

Civil Penalties states that FPC committed several viola-

tions of NRC requirements, including routinely exceeding

Curve 8, which actually was a design basis curve. RX 58

at 2. The NRC also found that Complainants’ two

unauthorized tests violated its regulations. RX 58, Enclo-

sure I at 2.9 The NRC acknowledged that Complainants

conducted the evolutions to resolve safety issues that had

not been addressed adequately by FPC. Id. The NRC also

concluded that the September 4 and 5 violation “resulted

from the independent actions of a single shift operating

crew” but found that “FPC as the employer of the opera-

tors involved bears responsibility for their actions as

employees.” Id.

In letters to each Complainant, the NRC stated that

the unauthorized evolutions constituted a violation of the

conditions of an operator’s license but determined not to

take formal enforcement action against the Complainants.

RX 61, 62. The agency noted that FPC already had

revoked the Complainants’ operator licenses. Id.

Although the NRC recognized that Complainants contrib-

uted to something good - the determination that Curve 8

was in error and nonconservative, and that the plant

periodically had been operated outside its design basis -

° The NRC determined that the Complainants’ “conduct of

unauthorized tests of MUT over pressure without preparation

of the required written safety evaluations” violated 10 C.F.R.

§ 50.59. C. Ex. 58, Enclosure I at 2. The NRC promulgated the

regulations at 10 C.F.R. Part 50 pursuant to the Atomic Energy

Act and the ERA. 10 C. F. R. § 50.1. Therefore, we deem a

violation of these regulations to constitute a violation of the

Atomic Energy Act and the ERA.

App. 18

the agency also chastised Complainants for not raising

the issue with the NRC’s Regional Office or Headquar-

ters. Id.

THE ALJ’S RECOMMENDED DECISION

Complainants filed complaints with the Department

of Labor in February 1996 alleging that FPC disciplined

all of them, demoted Stewart, and fired Fields and Weiss

because they engaged in activities protected under the

ERA. FPC moved for summary decision, citing Section

211(g). Complainants opposed the motion on the ground

that they did not deliberately cause a violation since they

did not know that the evolutions would cause a violation

of the ERA.

The ALJ announced a three part test for establishing

a Section 211 (g) affirmative defense: (1) that the act was

done without direction from the employer, (2) that com-

plainants deliberately did an act, and (3) that the act

caused a violation of ERA or AEA requirements. R. D.

and O. at 16. The ALJ found that Complainants’ actions

satisfied the three part test and granted FPC’s motion for

summary decision.

DISCUSSION

The standard for granting summary decision in whis-

tleblower cases, 29 C.F.R. § 18.40 and 18.41, is the same as

for summary judgment under the analogous Fed. R. Civ.

P. 56(e): moving parties must show that there is no mate-

rial issue of fact and that they are entitled to prevail as a

matter of law. Freels v. Lockheed Martin Energy Systems,

‘=

age

“a

Seg

¢ .

abe oie RECN Sy Se

So tcee Se eae

Se ose EN Re

App. 19

Inc., Case Nos. 94-ERA-6 and 95-CAA-2, Final Dec. and

Order, Dec. 4, 1996, slip op. at 5 and cases there cited,

appeal dismissed sub nom. Freels v. Secretary of Labor, Nos.

97-3117 & 97-3383 (6th Cir. Dec. 31, 1997). The facts are

considered in the light most favorable to the party oppos-

ing the motion for summary decision. Webb v. Carolina

Power & Light Co., Case No. 93-ERA-42, Sec. Dec. and

Rem. Ord., July 17, 1995, slip op. at 5. An opposing party

“may not rest upon mere allegations or denials [in the]

pleading[s], but must set forth specific facts showing that

there is a genuine issue for trial” and “must present

affirmative evidence in order to defeat a properly sup-

ported motion for summary judgment.” Anderson v. Lib-

erty Lobby, Inc., 477 U.S. 242, 256-257 (1986).

To determine if summary decision is warranted, we

will examine the showing required of FPC under Section

211 (g), beginning with a determination whether Com-

plainants acted without direction from their employer.

Complainants Acted Without Direction from FPC

It is undisputed that FPC did not expressly direct

Complainants to conduct the evolutions on September 4

and 5, but that does not end the inquiry. Complainants

argue that an employee acting under the “implied author-

ity” of the employer has acted with the employer’s direc-

tion. See Comp. Br. at 26.

In Dotson v. Anderson Heating and Cooling, Inc., Case

No. 95-CAA-11, ALJ Rec. Dec. and Ord., Oct. 2, 1995,

adopted in ARB Fin. Dec. and Ord., July 17, 1996, which

arose under the Clean Air Act’s (CAA) analogous

App. 20

employee protection provision,'!® Environmental Protec-

tion Agency (EPA) regulations promulgated under the

CAA required workers in the heating and cooling trade to

pass a certification test on refrigeration. After failing the

test the first time, the complainant, Dotson, participated

with his coworkers in cheating during the second admin-

istration of the test. The ALJ stated:

There is no evidence in the record to support a

conclusion that [Dotson’s employer] Anderson

explicitly ordered his employees to participate

in the cheating activities which occurred during

the October 31 examination. Therefore, if there is

to be a finding of direction by Anderson, it would

have to be implied from the circumstances surround-

ing the testing. (Emphasis added).

ALJ Rec. Dec. and Ord., slip op. at 19.

Complainants contend that there is a genuine issue of

material fact concerning whether they conducted the evo-

lutions under implied authority from FPC management.

Comp. Br. at 26. As support for implied authority, Com-

plainants initially cite statements of the NRC in letters

declining formal enforcement action against them:

Performance of an unauthorized evolution

affecting safety systems is a significant viola-

tion. However, after considering the results of

10 The Clean Air Act’s nearly identical defense states:

Subsection (a) of this section shall not apply with

respect to any employee who, acting without

direction from his employer (or the employer's

agent), deliberately causes a violation of any

requirement of this chapter.

42 U.S.C. § 7622(g).

App. 21

the OI investigations, the various written sub-

mittals and affidavits you and your attorneys

have presented, the information you provided

during your predecisional enforcement confer-

ence, and Florida Power Corporation’s (FPC

investigation results, we have concluded that for-

mal enforcement action against you is not war-

ranted. This decision is based, in part, on the extent

of FPC management's responsibility and culpability.

You are no doubt aware that the NRC has issued

a significant sanction against FPC which

included this violation. (Emphasis added).

RX 61 at 1-2 and RX 62 at 1-2. Complainants argue that

“{I]f the management has been held responsible for this

incident, then Complainants do not fall under the (g)

exception, as they acted under the implied direction of

their employer.” Comp. Br. at 26.

We do not agree that the NRC’s statements indicate

the existence of implied authority in this case. In its letter

to Fields, the NRC found that, “the unauthorized evolu-

tions authorized and directed by you on September 4 and

5, 1994, constituted a violation of the conditions of your

10 CFR Part 55 license.” RX 61 at 1!!. After noting that the

Complainants no longer possess an NRC operator’s

license (which FPC had revoked), the NRC stated that

“[t]his experience should emphasize to you the impor-

tance of not taking unilateral action such as conducting

unauthorized evolutions.” Id. at 2. The NRC’s use of the

words “unilateral” and “unauthorized” in these circum-

stances to describe Complainants’ actions negates any

11 There is nearly identical language in the NRC’s letters to

Weiss, RX 61, and Stewart, RX 62.

App. 22

inference Complainants attempt to draw from the NRC

letter quoted above that they had implied authority to

conduct the evolutions. Furthermore, the NRC’s Notice of

Violation and Proposed Imposition of Civil Penalties

faulted FPC for “ineffective management oversight of engi-

neering, operations, and corrective action activities dem-

onstrated by these violations.” Ex. 58 at 3 (emphasis

added). Complainants worked in operations, one of the

units that FPC did not oversee effectively. For all these

reasons, we reject the argument that the NRC letters

demonstrate implied authority.

Complainants also cite other factors to support their

theory of implied authority in this case. They note that

the CR-3 plant was “in an almost constant state of alarm

for two months upon the initial issuance of Curve 8 and

hundreds of times subsequently, without filing any

reports with the NRC.” Comp. Br. at 28, citing C. at 53.

Complainants argue that the routine triggering of the

MUT tank annunciator alarm light was a past course of

“management acquiescence and approval of similar con-

duct” which made it reasonable for them to believe that

they had the authority to run the evolutions. Comp. Br. ait

28.

The Dotson case is instructive concerning the allega-

tion that management acquiescence constitutes implied

authority. In that case, the employer, Anderson, was pres-

ent in the room at the time that Dotson cheated on the

examination. The ALJ reasoned, and we concurred:

Anderson was present in the room when Butch

left the answer sheet. Although Complainant

testified that he believed that Anderson had

‘

ARP SORA eee BR CR alll

ET aoe Tare We a

App. 23

paid Butch a bribe to set up the exam and pro-

vide the answers, he presented no corroboration

of this allegation. Therefore, there is no evidence

that Anderson knew what Butch was about to

do upon beginning the examination. But even if

Anderson did know of Butch’s plans, there must

still be some additional showing that he exerted

some pressure, even indirectly, upon his

employees to both remain in the room and par-

ticipate in the cheating. Complainant has offered

no evidence to this effect, even by his own testi-

mony. Thus, the question becomes: was Ander-

son’s mere presence in that room significant

enough to amount to “direction” to Complain-

ant to cheat on the exam? While there is

undoubtedly some combination of facts which

would yield a positive answer to this question,

this fact pattern does not. Complainant's willing

participation in the reading aloud of the correct

answers clearly separates him from being either

an innocent bystander or the victim of Ander-

son’s coercion, however slight. While it would

be understandable for Complainant to be reluc-

tant to refuse to take the exam under the circum-

stances which existed on October 31, clearly his

willingness to take part in the reading of the

answers strongly indicates his free will partici-

pation in the cheating. Based upon the forego-

ing, I find Complainant did not act at the

direction of his employer during the test-taking.

incident of October 31, 1994.

Dotson, ALJ Rec. Dec. and Ord., slip op. at 19.

In Dotson the employer’s physical presence during

the complainant’s commission of the unlawful act did not

constitute implied authority. In this case FPC’s prior

acquiescence in operating the plant under conditions that

App. 24

triggered the MUT annunciator light likewise did not

constitute implied authority. Moreover, FPC did not

acquiesce in the precise behavior that caused a violation.

Complainants conceded that no one had ever before

raised the hydrogen pressure and the water to the maxi-

mum levels and rapidly drained the MUT of water, as

they did. Fields Dep. at 59; Weiss Dep. at 179. We find no

implied authority here on the basis of employer acquies-

cence in similar conduct.

Complainants’ final argument concerning implied

authority is based upon a duty under their operators’

licenses to “protect the public and to assist in maintaining

the plant at optimum safety levels.” Comp. Br. at 28. They

state that “[t}]he only way management would further

consider their concerns was if they had some hard data to

highlight the problem.” Id. at 29.

The NRC’s letters to Complainants, however, explain

that Complainants had at least two additional routes to

raise their concerns about Curve 8:

We recognize that your operating crew had

raised questions concerning the conservatism of

operating curve OP-103B, Curve 8 to your man-

agement and to an NRC inspector. We are con-

cerned about the responses received from both

your management and the NRC. Nevertheless,

as a Shift Supervisor, we would have expected

you to have raised your concern higher within FPC.

You could have raised the issue to either the Regional

office or NRC headquarters. Rather than pursue

other avenues, you authorized your crew to per-

form a test that was not described in the Final

Safety Analysis Report by using a procedure

I OS en i eee ey

App. 25

that had not been designed for data gathering

purposes. (Emphasis added).

RX 61 at 2 (Fields and Weiss letters); see also RX 62 at 2

(Stewart letter).

The record demonstrates unequivocally that Com-

plainants could have brought their concerns about Curve

8 to higher managers within FPC and to the NRC’s

regional office and headquarters. Given that other ave-

nues were available to pursue Complainants’ safety con-

cern, the duty to protect the public did not constitute

implied authority to conduct the evolutions.

Taken alone or together, the three theories of implied

authority did not generate a genuine issue of material

fact. We find, as a matter of law, that Complainants acted

without any implied authority and that they acted “with-

out direction from” FPC when they caused a violation.!2

Section 211(g) Contains an Element of Willfulness

There is a considerable divergence of opinion among

the parties and the Acting Assistant Secretary for Occu-

pational Safety and Health, who filed a brief amicus cur-

lae, concerning the meaning of the phrase, “deliberately

causes a violation.” Complainants contend that Section

211 (g) must be interpreted “to require that a complainant

know his acts are illegal before he is stripped of his

whistleblower protection.” Comp. Br. at 12. Complainants

12 We adopt the ALJs rejection of the argument that Weiss

and Stewart acted with direction of their employer because they

were following the direction of Fields, their superior. R. D. and

O. at 16-18.

App. 26

also argue that the NRC’s definition of “deliberate”

should apply to a Section 211 (g) defense. Comp. Br. at

24-25. They state that under a NRC regulation, 50 C.F.R.

§ 50.5(c), deliberate misconduct is defined as “ ‘an inten-

tional act or omission that the person knows’ would

result in a violation of law or regulation.”!% Id. at 24.

Respondent argues the opposite, that Section 211(g)

may deprive complainants of whistleblower protection

even if they do not know that their act causes a violation.

The ALJ agreed with Respondent and the three part test

he derived does not contain a willfulness element.'4

‘3 Complainants refer to only a portion of the NRC’s

definition, however. The definition also includes “an intentional

act or omission that the person knows . . . (2) Constitutes a

violation of a requirement, procedure, instruction, contract,

purchase order, or policy of a licensee, applicant, contractor, or

subcontractor.” 10 C.F.R. § 50.5(c). On two occasions when

Complainants intentionally forced the MUT hydrogen pressure

to the point that it triggered the annunciator alarm and allowed

the alarm to remain on for some 35 to 43 minutes, they engaged

in an intentional act that violated FPC’s procedures and

instructions. Thus, if we were to adopt the NRC’s definition, as

Complainants suggest, we would find that they engaged in

deliberate misconduct as defined by the NRC regulation.

14 The ALJ stated that he derived the three part test from

the Secretary’s analysis in Jackson and Roskam v. Ketchikan Pulp

Co., Case Nos. 93-WPC-007 and 93-WPC-008, Sec. Final Dec. and

Ord., Mar. 4, 1996. See R. D. and O. at 15-16. In Jackson and

Roskam the Secretary made no analysis of the analogous

“deliberately causes a violation” language in the Federal Water

Pollution Control Act (WPCA). The Secretary’s entire discussion

of the issue was contained in one sentence: “For purposes of my

review of the ALJs decision on the merits, I have assumed,

without deciding, that Jackson’s attempt to dispose of a cable

ese ey fs ak EE Noe er ae Se RAT i Dacha Ni auc eine Ss aig h 5 Ze ot (oan r

LSE CBE SEEM ELTA ; : a ,

App. 27

The Acting Assistant Secretary argues that Section

211 (g) “applies only in situations where an employee

willfully commits a nuclear safety violation,” which

would be satisfied either by knowledge that a violation

will occur or by reckless disregard for whether a violation

will occur. Asst. Sec. Br. at 4, 8. The Acting Assistant

Secretary relies upon the common, dictionary meaning of

the word “deliberate,” the legislative history of the ERA’s

employee protection provision, and the fact that requir-

ing an element of willfulness furthers the remedial nature

of the ERA’s whistleblower provision.” 15

Since the statute does not define the term, “deliber-

ately,” we will turn to the legislative history. The Acting

Assistant Secretary finds support for defining the term to

include the element of willfulness in the Senate Report:

in order to avoid abuse of the protection

afforded under the [ERA’s employee protection

provision], the committee has added a provision

which would deny its applicability to any

employee who, without direction from his

employer, deliberately violates or willfully contrib-

utes to a violation of any standard, requirement,

or regulation under the act. (Emphasis added).

S. Rep. No. 848, 95th Cong., 2d Sess. 30 (1978), reprinted

in 1978 U.S.C.C.A.N. 7303, 7304. We find that the use of

the term “willfully contributes to a violation” in the Sen-

ate Committee’s report indicates that Congress intended

into the water did not exclude him from protection under the

WPCA. 33 U.S.C. § 1367(d).” Jackson and Roskam, slip op. 5 n.3.

'S The Acting Assistant Secretary “offered no opinion as to

whether the complainants here willfully violated a nuclear

safety requirement.” Asst. Sec. Br. at 4 n.4.

App. 28

the words “deliberately causes” to have an element of

willfulness.

As a remedial statute, the ERA should be liberally

interpreted to protect victims of discrimination and to

further its underlying purpose of encouraging employees

to report perceived nuclear safety violations without fear

of retaliation. See generally, English v. General Elec. Co., 496

U.S. 72 (1990). See also, Bechtel Constr. Co. v. Secretary of

Labor, 50 F. 3d 926, 932 (11th Cir. 1995) (“it is appropriate

to give a broad construction to remedial statutes such as

nondiscrimination provisions in federal labor laws.”).

Since the ERA’s remedial protection is to be interpreted

broadly, any affirmative defenses logically should be

interpreted narrowly so as to provide the act’s protec-

tions to employees who work within the bounds of safety.

The ALJs interpretation of Section 211 (g) to include

any action that is not inadvertent would, however,

greatly expand the breadth of this affirmative defense.

Such an interpretation could lead to unfortunate results

in situations in which an employee acts deliberately (that

is, not inadvertently), but innocently and without knowl-

edge or reckless disregard that his or her action will

cause a violation of the ERA or the Atomic Energy Act.

We are unaware of any decision in which a court has

directly addressed the meaning of phrase, “deliberately

causes a violation,” in Section 211(g) or analogous whis-

tleblower provisions. The sole Supreme Court case con-

cerning Section 211 (g) does not shed iight on its

meaning. In English, 496 U.S. at 90, the Court held that a

state law “claim for intentional inflection of emotional

distress does nct fall within the pre-empted field of

Bit On wheats aes toes

App. 29

nuclear safety” or “conflict with any particular aspect of

Section [211].”!© The Court’s cursory discussion of Sec-

tion 211 (g) merely repeated the ALJ’s finding on the

subject, which neither the Secretary nor the lower courts

discussed: “In the instant case, the ALJ found that peti-

tioner had not deliberately committed a safety violation

within the meaning of Section [211 (g)], . . . and neither

the Secretary nor the lower courts have suggested other-

wise.” Id. at 88.

Both Complainants, Comp. Br. at 18-19, and FPC,

Resp. Br. at 19-20, draw support for their interpretation of

“deliberately causes a violation” from Iowa Electric Light

& Power Co. v. Local 204, Int'l Brotherhood of Elec. Workers,

834 F.2d 1424 (8th Cir. 1987). There, the United States

Court of Appeals for the Eighth Circuit affirmed a Dis-

trict Court ruling that overturned a labor arbitration

award of reinstatement of an employee who had been

discharged for “deliberately violating important feder-

ally-mandated safety regulations.” Id. at 1425. The NRC

had approved the discharge. Id. at 1426. The Eighth Cir-

cuit found that the employee “deliberately proceeded to

defeat the interlock system, thereby committing a know-

ing violation of the safety rule. ...” Id. at 1430. Although

the court was not construing the meaning of Section 211

(g), we note that the Eighth Circuit equated the term

“deliberately” with the element of knowledge. The court

found that where the employee knows there is a rule,

16 After the English decision, Congress amended the ERA in

the Comprehensive National Energy Policy Act of 1992, Pub. L.

No. 102-86, 106 Stat. 2776. The amendment renumbered former

§ 210 as § 211.

App. 30

knows that the rule has an important purpose, and the

employee violates the rule, the employee has acted delib-

erately. Id. We do not read lowa Electric to mean that an

employee must know the particular rule he is violating or

secondly, that an employee who recklessly disregards

safety rules is protected. In Iowa Electric the employee

had actual knowledge of causing a safety violation and

the issue of reckless disregard did not arise. Id. at

1429-1430. We do, however, rely on Iowa Electric to sup-

port our conclusion that an element of willfulness must

be present in order to successfully raise a 211 (g) defense.

Including the element of willfulness in the meaning

of “deliberately causes a violation” also is in keeping

with Board precedent. In the previously discussed deci-

sion in Dotson where the affirmative defense was suc-

cessfully raised, the complainant, Dotson, admitted “that

he actively participated in reading off at least some of the

answers” from a copy of the test that was left in the room

where the EPA examination was administered. Dotson,

ALJ Rec. Dec. and Ord., slip op. at 18. The ALJ found

Dotson’s “admission sufficient to determine that Com-

plainant deliberately participated in an activity which

violated the Act, whose provisions mandate the taking

and passing of the CFC examination, presumably without

cheating, in order to be allowed to continue working in

the HVAC industry.” Id. The discussion in Dotson shows

that the complainant acted willfully, with either knowl-

edge or reckless disregard, that his cheating would cause

a violation of the Clean Air Act as he continued to work

in refrigeration without having lawfully passed the certi-

fication exam. Slip op. at 18-19.

i al te 2 P

kata

App. 31

Section 211(g) Does Not Require Specific Intent

Complainants suggest that decisions of the Secretary

construing Section 211(g) require a finding of the com-

plainant’s “specific intent” to cause a violation. Comp. Br.

at 14. As an example, Complainants point to language in

Drew v. Jersey Central Power & Light Co., Case No. 81-

ERA-3, ALJ (Rec.) Dec. and Ord., June 16, 1982, slip op. at

19, adopted in Sec. Final Dec. and Ord., Jan. 13, 1984:

“There is no substantial evidence that Complainant delib-

erately caused any violation of the law. Drew did proceed

to repair the defective weld valve in November 1978

without benefit of a prior written approval of his welding

procedure for that weld, but he believed he was acting

properly.”

We do not find a specific intent requirement in Drew,

where the ALJ emphasized that the failure to obtain prior

written approval was merely a “technical procedural

problem” and a “technical violation” of quality assurance

rules. Drew, ALJ Dec., slip op. at 18. There was no indica-

tion of reckless behavior on Drew’s part. At most, Drew

stands for the proposition that where a technical and

procedural regulatory violation is posited as the basis for

a Section 211 (g) defense, the complainant’s belief that he

was not causing a violation is a factor to consider.

Nor do other, later decisions of the Secretary, con-

vince us that for a successful Section 211(g) defense there

must be a showing of the complainant's specific intent to

cause a violation. In James v. Ketchikan Pulp Co., Case No.

94-WPC-4, Sec. Final Dec. and Ord., Mar. 15, 1996, what-

ever the complainant's intentions in using sloppy prac-

tices to conduct laboratory tests, there was no showing

App. 32

that his poor practices caused any statutory or regulatory

violation, and therefore the defense based upon “deliber-

ately causes a violation” necessarily failed.!7

Similarly, in Creekmore v. ABB Power Systems Energy

Services, Inc., Case No. 93-ERA-24, Dep. Sec. Dec. and

Rem. Ord., Feb. 14, 1996, although the record established

that violations of NRC regulations had occurred, the Dep-

uty Secretary found that the complainant did not cause

the violations: “Since I credit Creekmore’s testimony that

he neither knew about, or condoned, the premature issu-

ance of good guy letters [clearing personnel for access to

nuclear sites], I also agree with the ALJ’s finding that

Creekmore did not deliberately cause [the respondent] to

violate the ERA.” Creekamore, slip op. at 15.

Relying upon the legislative history and statutory

purpose of the whistleblower provision and consistent

with earlier decisions of the Secretary and this Board, we

find that to establish a valid Section 211 (g) defense, a

respondent must show that a complainant willfully or

recklessly caused a violation of the ERA or the Atomic

Energy Act, that is, that the complainant acted with

knowledge or with reckless disregard of whether his or

her act would cause a violation. Having defined the nec-

essary showing for “deliberately causes a violation,” we

will discuss whether FPC made that showing in this case.

17 James arose under the WPCA, which contains a

provision nearly identical to Section 211(g). See 33 U.S.C.

§ 3367(d).

App. 33

Complainants Acted With Reckless Disregard, and

Therefore Deliberately Caused a Violation

Complainants did not have actual knowledge that

maximizing the MUT’s hydrogen pressure and draining

its water would cause a violation of the ERA or the

Atomic Energy Act, as FPC’s actions demonstrate. The

company presented Curve 8 to the reactor operators as a

conservative operating curve and there is no violation if

such a curve is exceeded by a small amount. In addition,

the annunciator light indicating that MUT hydrogen pres-

sure was too high had been triggered often in the months

prior to September 1994. Complainants suspected, but

did not actually know, that Curve 8 was nonconservative.

Indeed, it was only after the Complainants conducted the

unauthorized evolutions that FPC managers learned

definitively that Curve 8 was a design curve that should

never be exceeded.

We would be more inclined to find an absence of

recklessness if there were no other means to seek correc-

tion of Curve 8. As we noted above, however, Complain-

ants could have brought their concerns to higher

managers within FPC and to other levels of the NRC,

both in the regional office and at the headquarters. An

NRC resident inspector even invited Complainants to

submit a formal allegation to the NRC concerning Curve

Complainants contend that their actions “were

appropriate, and consistent with the type encouraged by

the respondent.” Comp. Br. at 8. Nevertheless, they

admitted in depositions that the specific evolutions they

conducted had not been done in the past. And if they

App. 34

sincerely believed their actions were consistent with pro-

cedures that FPC encouraged, they could easily have

sought approval for the evolutions from higher manage-

ment. They did not do so. See R. D. and O. at 16.

Complainants were well aware of the danger of oper-

ating the reactor with hydrogen pressure that was too

high for the level of water in the MUT. Both Fields (Dep.

p. 54, 78) and Weiss (Dep. p. 65-66) believed that catastro-

phe could arise if a loss of coolant accident occurred

while the MUT’s hydrogen pressure was too high.

While the NRC acknowledged that the Complain-

ants’ actions had the salutary effect of proving that Curve

8 was nonconservative, the agency also concluded that

the salutary effect did not excuse the Complainants’ risk

taking:

We further recognize that your operating crew

contributed to the determination that the curve

for maximum make-up tank pressure was in

error and nonconservative and that the plant

had been periodically operated outside its

design basis. You also provided additional data

that assisted in determining the extent to which

operators were violating OP-103B, Curve 8, and

the environment that existed at FPC. Neverthe-

less, we emphasize that the ends cannot justify

the means. In this case, your actions demon-

strated the validity of your concerns; in other

instances such might not be the case.

RX 61 at 2 (Fields, Weiss letters); see also RX 62 at 2

(Stewart letter).

Nuclear power is “one of the most dangerous tech-

nologies man has invented.” Rose v. Secretary of Labor, 800

App. 35

F.2d 563, 565 (6th Cir. 1986) (Edwards, concurring). We

find that, in light of the inherent danger involved in

operating a nuclear plant and the existence of other ave-

| nues of redress for their suspicions about Curve 8, Com-

plainants acted with reckless disregard of whether a

violation of the ERA or the Atomic Energy Act would

occur when they conducted the September 4 and 5 evolu-

tions.

CONCLUSION

In light of the Complainants’ reckless disregard for

whether a violation would occur, the Complainants

“deliberately caused a violation” of regulations promul-

gated under the Atomic Energy Act and the ERA. There is

no genuine issue of material fact and FPC has established

a valid Subsection 211 (g) defense as a matter of law.

Accordingly, we accept the ALJ’s recommendation and

grant summary decision to FPC. The complaints are DIS-

MISSED.

SO ORDERED.

/s/ David A. O’Brien

DAVID A. O’BRIEN

Chair

+4 pre

7 /s/ Karl J. Sandstrom

; KARL J. SANDSTROM

§ Member

Poet ey ees srinkes "

App. 36

ADMINISTRATIVE REVIEW BOARD

CERTIFICATE OF SERVICE

Case Name : David A. Fields, Robert P. Weiss, and

Jack D. Stewart v. Florida Power

Corporation

ARB Case No.: 97-070

ALI Case No. : 96-ERA-22

Document : Final Decision and Order

A copy of the above-referenced document was sent to

the following persons on MAR 13 1998

/s/ Tisa McLae

CERTIFIED MAIL:

David A. Fields

7347 Applewood Drive

Inverness, FL 34450

Robert P. Weiss

964 NE 8th Avenue

Suite 4

Crystal River, FL 34428

Jack D. Stewart

940 NE 4th Avenue

Crystal River, FL 34428

David D. Dickey, Esq.

de la Parte, Gilbert & Bales

One Tampa City Center

Suite 2300

P. O. Box 2350

Tampa, FL 33601-2350

App. 37

R. Alexander Glenn

Corporate Counsel

Florida Power Corporation

3201 34th Street South

St. Petersburg, FL 33711

Morris Weinberg, Jr.,

Laura Vaughan

Zuckerman, Spaeder, Taylor

& Evans, LLP

401 E. Jackson Street, Suite 2525

Tampa, FL 33602

Daniel F. Stenger

Donn C. Meindertsma, Esq.

Winston & Strawn

1400 L Street N.W.

Washington, DC 20005-3502

REGULAR MAIL:

Barry J. Lentz

Wage and Hour Division/ESA

4905 W. Laurel Street, Suite 300

Tampa, FL 33607

Steven J. Mandel, Esq.

Associate Solicitor

for Division of Fair Labor Standards

U.S. Department of Labor

Room N-2716

200 Constitution Avenue, N.W.

Washington, D.C. 20210

John R. Fraser

Acting Administrator

Wage and Hour Division/ESA

U.S. Department of Labor

Room S-3502

200 Constitution Avenue, N.W.

Washington, D.C. 20210

App. 38

Director

Enforcement & Investigation Coordination Staff

Nuclear Regulatory Commission

Region II, Suite 2900

101 Marietta Street, NW

Atlanta, GA 30323

Director

Office of Enforcement

Nuclear Regulatory Commission

Washington, D.C. 20555

Deputy Assistant General

Counsel for Enforcement

Office of the General Counsel

U.S. Nucfear Regulatory Commission

Washington, DC 20555

Office of General Counsel

Deputy Assistant General

Ceunsel for Enforcement

11555 Rockville Pike

Rockville, MD 20852

Hon. John M. Vittone

Chief Administrative Law Judge

Office of Administrative Law Judges

800 K Street, N.W., Suite 400

Washington, DC 20001-8002

Hon. David W. Di Nardi

Administrative Law Judge

Office of Administrative Law Judges

John W. McCormack Post

Office and Courthouse, Room 500

Boston, MA 02109

a a ee

App. 39

U.S. Department of Labor [LOGO]

(617) 223-9355

(617) 223-4254 (FAX)

Office of Administrative Law Judges

John W McCormack Post Office and Courthouse

Boston, Massachusetts 02109

Room 507

Date: March 11, 1997

Case No.: 96-ERA-22

In the Matter of:

David A. Fields,

Robert P. Weiss, and

Jack D. Stewart

Complainants

Vv.

Florida Power Corporation

Respondent

RECOMMENDED DECISION & ORDER GRANTING

RESPONDENT’S MOTION FOR

SUMMARY DECISION

This case arises under the Energy Reorganization Act

of 1974 as amended, 42 U.S.C. §5851 (hereinafter “the

Act” or “the ERA”), and the implementing regulations

found at 29 C.F.R. Part 24. Pursuant to the Act, employees

of licensees of or applicants for a license from the Nuclear

Regulatory Commission (hereinafter “the NRC”) and

their contractors and subcontractors may file complaints

and receive certain redress upon a showing of being

subjected to discriminatory action for engaging in a pro-

tected activity. The following abbreviations shail be used

herein: “RX” for Exhibits attached to Respondent's

App. 40

Motion for Summary Decision and “CX” for Exhibits

attached to Complainants’ Response to the Motion.

I. Summary of the Motion

There is currently pending before this Administrative

Law Judge, Respondent’s Motion for Summary Decision

and/or Dismissal. Said Motion was submitted on or

about November 25, 1996, and argues (1) that summary

decision and/or dismissal of the entire complaints is

proper based upon the §5851(g) affirmative defense, and /

or (2) that summary decision and/or dismissal of part of

the Fields and Weiss complaints is proper based upon the

statute of limitations found at 42 U.S.C. §5851(b)(1). Com-

plainants exercised their right to respond to the Motion

by Complainants’ Response to FPC’s Motion for Sum-

mary Decision and/or Dismissal, dated December 5,

1996.' I have also considered Respondent's Reply to Com-

plainants’ Response to Motion for Summary Decision in

reaching my determination of whether to grant the

Motion.

| also granted the parties the benefit of appearing

before this Judge to present oral argument on the Motion.

The Motion hearing was conducted on December 19,

1996, in Tampa, Florida, and I have duly considered the

' CX J, admitted at the December 12, 1996, Motion hearing,

is Complainants’ Amended Response to FPC’s Motion for

Summary Decision and/or Dismissal. The Amended Response

was provided for the sole purpose of including citations of

deposition transcripts previously omitted due to unavailability

at the time the original response was filed.

App. 41

persuasive arguments of both counsel which were then

presented.

Il. Summary of the Evidence

There are certain irrefutable facts established by the

various supporting documents attached to Respondent's

Motion for Summary Decision and Complainants’

Response thereto. Among these documents, which I may

properly rely upon in considering the pending Motion,

are Complainants’ deposition testimony, the Complain-

ants’ testimony before the Nuclear Regulatory Commis-

sion’s Office of Investigations, and a number of letters

from the NRC to the parties. I have found the Complain-

ants’ above-mentioned depositions and testimony of par-

ticular relevance because, for purposes of this Motion, I

assume it to be truthful and in accordance with testimony

they would have given in a hearing before this Admit:is-

trative Law judge.

The irrefutable facts are these:

1. Respondent operates the CR-3 nuclear power plant

located in Crystal River, Florida.

2. Complainants were reactor operators at the CR-3

nuclear plant. As reactor operators, the Complainants

were licensed by the NRC and subject to regulatory and

licensing requirements. Compl., { 2. Complainant Fields

occupied a position as the Nuclear Shift Supervisor, Com-

plainant Weiss was the Assistant Shift Supervisor, and

Complainant Stewart was one of two Chief Nuclear Oper-

ators.

App. 42

3. The Make-up Tank (MUT) is one of the primary safety

systems in the event of a loss of coolant accident (LOCA)

at CR-3.

4. The Complainants were concerned that Curve 8, a

curve which provides the pressur?/level limits for the

Make-up Tank, was invalid. The Complainants’ con-

cern(s) about Curve 8 were serious. See RX A, Fields

Deposition (hereinafter Fields Depo.), p. 54, 78 (reason to

believe catastrophic events could happen); RX B, Weiss

Deposition (hereinafter Weiss Depo.), pp. 65-66 (Weiss

believed there was a potential for catastrophe at the

plant); RX __.? Stewart Deposition (hereinafter Stewart

Depo.), pp. 12-13 (Stewart states the potential for catas-

trophe was that crews were operating in a region where a

LOCA could occur). See Also Compl., {{ 59 and 61

(which set forth the Complainants’ belief that they had a

duty to verify a critical safety issue).

5. It is uncontroverted that on September 4 and 5, 1994,

the Complainants each participated in adding hydrogen

to the MUT and then rapidly reducing the water level.

Compl. {{ 62-63, 72-73; Fields Depo., pp. 109-110.

6. There was no plan to perform these acts prior to the

beginning of the respective shifts. Fields Depo., pp. 151,

226, 419; Weiss Depo., pp. 226, 351-52; RX 53, NRC Office

of Investigation (hereinafter “OI”) interview of Com-

plainant Weiss, December 1, 1994, p. 7; RX 54, NRC OI

Interview of Complainant Fields, December 1, 1994, pp.

10-15.

2 This is an unlettered exhibit supplied to this Judge upon

its availability from the transcriber.

App. 43

7. It was Mark Van Sicklen’s? idea to perform these acts

on September 4, 1994. Weiss Depo., pp. 126, 158-59. Van

Sicklen suggested the acts to Complainant Weiss and

Weiss took the idea to Complainant Fields. Weiss Depo.,

pp. 126-27, 158-59.

8. In the middle of the shift on September 5th, Com-

plainant Weiss and Van Sicklen suggested to Stewart that

they should try the evolution again. Stewart Depo., p. 68.

9. These acts triggered a control room annunciator

alarm, compl. {{ 63 and 73; Fields Depo. pp. 97, 109-110,

159-169, 172-173; which remained in alarm on September

4th for forty-three (43) minutes, and on September 5th for

thirty-five (35) minutes. Fields Depo., pp. 489-90; RX 32,

Memorandum From D. Fields to G. Halnon Dated March

15, 1995, p. 3; RX 35, Memorandum from D. Fields to S.

Ebneter Dated May 23, 1995, p. 3. See Also Weiss Depo.,

pp- 38, 43. A timeline of the September 5 acts was drafted

by Complainants Fields and Weiss. See RX 14, Problem

Report 94-0267, Dated September 7, 1994; RX 18, OP-103B

Curve 8 Verification 9/5/94; RX 29, LER 94-009-00, Dated

December, 1994; RX 52, “Timeline MUT lvl decrease

9/5/94.”

10. It is a fact that the only reason the Complainants

conducted the acts was to challenge the validity of Curve

8. Fields Depo., pp. 78, 85, 114; Weiss Depo., pp. 177, 178;

Stewart Depo., pp. 55, 56, 76. There were no operational

* Mr. Van Sicklen is not a Complainant in the present

action. He was, however, a participant in the actions performed.

At the relevant time, Mr. Van Sicklen was employed as a Chief

Nuclear operator at CR-3.

App. 44

reasons for the acts. Fields Depo., p. 77; Weiss Depo.,

p. 76; Stewart Depo., p. 76.4 The intent was to give

Engineering data that would convince them that there

was a problem with the Curve. Weiss Depo., p. 98; Fields

Depo., pp. 78, 86; Stewart Depo., pp. 12, 164-65.

11. Weiss states the decision to challenge Curve 8 on the

4th and the 5th was a deliberate and intentional decision

on his part. Weiss Depo., p. 184.

12. Stewart admits that it is a fact that if a crew deliber-

ately takes a plant beyond any of the parameters of Curve

8, i.e., the 55 inch low and 86 inch high, that a test

procedure is needed. Stewart Depo., p. 21.

13. Complainants did not consult with the CR-3 Engi-

neering Department before conducting their acts, either

on the 4th or the 5th, Weiss Depo., p. 100, nor did they

consult management or the Shift Manager regarding their

acts, Fields Depo., pp. 80, 418-25; Weiss Depo., pp. 83-84,

88-89; RX C, Affidavit of Gregory Halnon, para. 5; RX D,

Affidavit: of Bruce Hickle, para. 4; nor did they consult

the NRC. Fields Depo., p. 52; Weiss Depo., p. 253. Stewart

admits that neither Complainant Fields nor Complainant

Weiss told him that they had talked with Greg Halnon;

Bruce Hickle, Director of Nuclear Plant Operations; or Dr.

P.M. Beard, Senior Vice-President of Nuclear Operations,

about the tests. Stewart Depo., p. 123.

+ There was no operational reason to add hydrogen. Fields

Depo., p. 77; Stewart Depo., p. 76. Stewart states the

“operational reason” that the crew lowered the level from 86 to

55 inches was to find out if Curve 8 was valid or not. Stewart

Depo., p. 77. See Also Fields Depo., p. 78. I find this to be a

circuitous statement.

App. 45

14. Weiss states he did not tell a shift supervisor of the

actions because he was using routine procedure to check

it out. Weiss Depo., p. 27. Weiss calls the steps of the

process routine, a series of routinely performed evolu-

tions. Weiss Depo., pp. 72, 128, 352. Weiss believed he

was fully authorized to do what he did. Weiss Depo.,

p- 71. Fields explains that he did not consult with the

NRC because “what we planned to do was clearly within

our authority to perform,” Fields Depo., p. 52, i.e., it was

within OP-402, a pre-approved procedure. Fields Depo.,

pp. 65, 153. See Also RX 32, supra para. 9.

15. Weiss admits, however, that it was not routine to call

the auxiliary building operator and tell him to dress out,

Weiss Depo., p. 72; nor was it routine to add hydrogen at

a high level and do an entire bleed down to the low level

while the plant was in alarm. Weiss Depo., p. 73. See

Also Stewart Depo., pp. 28-29, 37, 46-47 (stating the non-

routine nature of the acts performed).

16. Complainant Stewart does not know if it is routine

to add hydrogen at the high level and do a bleed to the

low level, although he states that he had never done it

before. Stewart Depo., 29. During Complainant Stewart's

OI interview, the investigator asked if it was “a routine

evolution or routinely [sic] to post someone at the

makeup tank at that area in order to vent the makeup

tank during a hydrogen fill operation?” Stewart Depo.,

p. 115, (Quoting RX 55, Stewart’s OI Interview of Decem-

ber 1, 1994, p. 11). Stewart answered “No. We don’t

anticipate challenging any curves.” Stewart Depo., p. 115.

Complainant Stewart admits it is not a routine conversa-

tion to discuss what would happen if a LOCA came in.

Stewart Depo., p. 28.

App. 46

17. Complainants did not know, at the time of their acts,

that Curve 8 was a design basis. Stewart Depo., pp. 63,

149; RX 32, supra para. 9, at p. 3; RX 35, supra para. 9, at

p. 3. Complainants have, however, stated they suspected

Curve 8 was nonconservative. Stewart Depo., p. 148; RX

35, supra para. 9, at p. 5.

18. Complainants did not know, at the time of their acts,

what the definition of a test was. Stewart Depo., p. 93; CX

66, NRC Investigative Interview of R. Weiss, August 31,

1995, at p. 37.

19. An NRC OIF Report states Respondent had appar-

ently violated NRC regulations by failing to exercise the

appropriate management oversight and control in an

attempt to preclude intentional violation of plant pro-

cedures. RX 59, Letter From NRC to P.M. Beard, Dated

July 7, 1995, at p. 2.

20. An NRC Notice of Violation and Imposition of Civil

Penalties, dated on or about July 10, 1996, states that the

NRC has determined Respondent has committed a

number of significant violations of NRC requirements. RX

58, Letter From NRC to P.M. Beard Dated July 19, 1996.

Among these violations was a violation for routinely

exceeding operating limits associated with operating pro-

cedure OP-103B, Curve 8, and a violation in which a crew

of licensed operators conducted unauthorized tests on

two separate occasions in an effort to resolve safety issues

that had not been promptly addressed by Respondent. RX

58, supra, at p. 2. In regards to the latter action, the NRC

Description of Violations also states that although “this

violation resulted from the independent actions of a sin-

gle shift operating crew, FPC as the employer of the

App. 47

operators involved bears responsibility for their actions

as employees.” RX 58, supra, at Enclosure 1, Do. 2.

21. A February 13, 1996, Report of Investigation by the

NRC OL, states its conclusion as follows: “the shift super-

visor, assistant shift supervisor, and two chief operators

on the midnight shift of September 4 and 5, 1994, deliber-

ately conducted an evolution, not required by plant con-

ditions, for the specific purpose of gathering data.

Furthermore, when the allowable makeup tank over-

pressure was exceeded, the operators deliberately

delayed taking appropriate action to reduce makeup tank

overpressure while gathering that data.” RX 64, NRC OI

Report of Investigation Dated February 13 1996, Syn-

opsis, at p. 1.

22. The NRC determination of violation letter, sent to

Complainant Fields states

As a senior reactor operator, you were licensed

to direct the activities of other operators. The

Operating crew that you supervised failed to

meet the standards for operators of a nuclear

power plant. We conclude, based on the infor-

mation developed during the inspections and

investigations and the information you pro-

vided during the conference, that the

unauthorized evolutions authorized and

directed by you on September 4 and 5, 1994,

constituted a violation of the conditions of your

10 C.F.R. Part 55 license.

Performance of an unauthorized evolution

affecting safety systems is a significant viola-

tion. However, after considering the results of

the OI investigations, the various written sub-

mittal and affidavits you and your attorneys

App. 48

have presented, the information you provided

during your predecisional enforcement confer-

-ence, and Florida Power Corporation’s (FPC)

investigation results, we have concluded that

formal enforcement action against you is not

warranted. This decision is based, in part, on the

extent of FPC management's responsibility and

culpability. . . .

. . . . Nevertheless, as a Shift Supervisor, we

would have expected you to have raised your

concern higher within FPC. You could have

raised the issue to either the Regional Office or

NRC Headquarters. Rather than pursue other

avenues, you authorized your crew to perform a

test that was not described in the Final Safety

Analysis Report by using a procedure that had

not been designed for data gathering purposes.

We further recognize that your operating crew

contributed to the determination that the curve

for maximum make-up tank pressure was in

error and nonconservative and that the plant

had been periodically operated outside its

design basis. You also provided additional data

that assisted in determining the extent to which

operators were violating OP-103B, Curve 8, and

the environment that existed at FPC. Neverthe-

less, we emphasize that the ends cannot justify

the means... .

You no longer possess an NRC operator’s

license. This experience should emphasize to

you the importance of not taking unilateral

action such as conducting unauthorized evolu-

tions.

App. 49

RX 61, Letter From NRC to D. Fields, Dated July 10,

1996.5 .

23. The NRC determination of violation letter directed

to Complainant Stewart states

As a reactor operator, you were licensed to

direct the controls of the Crystal River Nuclear

Power Plant. You were specifically involved in

the planning and implementation of the

unauthorized evolutions conducted on Septem-

ber 4 and 5, 1994. We conclude, based on the

information developed during the inspections

and investigations and the information you pro-

vided during the conference, that unauthorized

evolutions conducted by you and your crew on

September 4 and 5, 1994, constituted a violation

of Commission requirements.

Performance of an unauthorized evolution

affecting safety systems is a significant viola-

tion. However, after considering the results of

the OI investigations, the various written sub-

mittal and affidavits you and your attorneys

have presented, the information you provided

during your predecisional enforcement confer-

ence, and Florida Power Corporation’s (FPC)

investigation results, we have concluded that

formal enforcement action against you is not

warranted. This decision is based, in part, on the

extent of FPC management's responsibility and

culpability. .. .

> Also attached as Exhibit 61, is the NRC letter to

Complainant Weiss, which is, for all intents and purposes,

virtually identical to Complainant Fields’ letter.

App. 50

.... Nevertheless, as a licensed reactor operator

in the position of Chiet Nuclear Operator, we

would have expected you to have raised your

concern higher within FPC. You could have

raised the issue to either the Regional office or

NRC Headquarters. Rather than pursue other

avenues, your crew performed a test that was

not described in the Final Safety Analysis

Report by using a procedure that had not been

designed for data gathering purposes. We fur-

ther recognize that your operating crew contrib-

uted to the determination that the curve for

maximum make-up tank pressure was in error

and nonconservative and that the ple.t had

been periodically operated outside its design

basis. You also provided additional data that

assisted in determining the extent to which

operators were violating OP-103B, Curve 8, and

the environment that existed at FPC. Neverthe-

less, we emphasize that the ends cannot justify

the means... .

You no longer possess an NRC operator’s

license. Should you apply for a license in the

future, this experience should emphasize to you

the importance of raising issues to higher man-

agement and the NRC rather than taking uni-

lateral action such as conducting unauthorized

evolutions.

RX 62, Letter From NRC to J. Stewart, Dated July 10, 1996.

24. In response to these letters, the attorney represent-

ing Complainants Fields and Weiss wrote the NRC that

his clients were “gratified to see that the NRC’s final

ruling on the ‘MUT Issue’ concluded that ‘enforcement is

not warranted’ and no Notice of violation is being issued.

The plant operators believe that the blame for the episode

App. 51

is appropriately being placed squarely on the shoulders

of the Florida Power Corporation.” CX 67, Letter From R.

Hendrix to NRC, Dated July 19, 1996, at p. 1. The attorney

continues, however, to express dissatisfaction with the

language in regards to “unauthorized tests” and the oper-

ators’ failure to meet standards for nuclear power plant

operators. Accordingly, the attorney requested a hearing

to appeal the NRC findings. CX 67, supra. A similar letter

was addressed to the NRC on Complainant Stewart's

behalf. CX 67, supra.

25. The NRC’s response to both letters stated that a

request for appeal is premature, given the fact that the

NRC had not yet taken any enforcement action directly

against the Complainants and that the NRC would not

rescind its letter describing findings of unauthorized

tests. See CX 67, Letter From NRC to R. Hendrix, Dated

August 23, 1996; Letter From NRC to B. Morris Dated

September 9, 1996.

III. Conclusions of Law

The resolution of Respondent’s Motion for Summary

Decision and/or Dismissal hinges upon the interpretation

of §5851(g) of the Energy Reorganization Act. That Sec-

tion provides

summary decision and/or dismissal on the Fields and Weiss

complaints based upon the applicable statute of limitations, this

Judge does not reach a determination of that issue because of

the §5851(g) defense.

App. 52

Subsection (a) of this section shall not apply

with respect to any employee who, acting with-

out direction from his or her employer (or the

employer’s agent), deliberately causes a viola-

tion of any requirement of this chapter or of

the Atomic Energy Act of 1954... 42 U.S.C.

§5851(g). (Emphasis added)

The section serves as a bar to a complainant’s ERA claim

once it is determined that he or she has caused a deliber-

ate violation of the ERA or AEA. See English v. General

Elec. Co., 683 F.Supp. 1006, 1014 (E.D.N.C. 1988), aff’d on

other grounds, 871 F.2d 22 (4th Cir. 1989), rev’d on other

grounds, 496 U.S. 72 (1990); Dotson v. Anderson Heating

and Cooling, Inc., 95-CAA-11 (Sec’y July 17, 1996), (ALJ

October 2, 1995). The legislative history reveals that “in

order to avoid abuse of the protection afforded under [the

ERA], the committee has added a provision which would

deny its applicability to any employee who, without

direction from his employer, deliberately violates or will-

fully contributes to a violation of any standard, require-

ment, or regulation under the act.” S. Rep. No. 848, 95th

Cong., 2d Sess. 30 (1978), reprinted in 1978 U.S.C.C.A.N.

7303, 7304. The meaning of the section is rendered

unclear inasmuch as the statute does not include defini-

tions of the pertinent terms.

On the one hand, Respondent argues the section

should be interpreted to require only that Complainants

deliberately committed an act which resulted in a viola-

tion of the relevant law. According to this interpretation,

Respondent argues, it would be irrelevant whether Com-

plainants knew that the act they deliberately committed

was illegal.

App. 53

On the other hand, Complainants argue the statutory

language must he interpreted to require a complainant

know’ his acts are illegal. Complainants, noting that there

is “no authority that a mere violation of nuclear safety

regulatory regulations justifies discriminatory conduct,”

Complainants’ Response, p. 8, would have this Adminis-

trative Law Judge apply an NRC regulation in interpret-

ing §5851(g).8 As Complainants summarize in their

response to Respondent’s Motion, the deliberate miscon-

duct standard of the NRC regulation requires an inten-

tional act or omission that the person knows constitutes a

violation of nuclear regulatory requirements. Complain-

ants’ Response, p. 9.

It is a basic tenet of statutory construction that if

statutory language is clear and unambiguous on its face

then it must be given its plain meaning and no resort to

the underlying legislative history is appropriate. See

Generally Kansas Gas & Elec. Co. v. Brock, 780 F.2d

1505, 1510 (10th Cir. 1985), cert. denied, 478 U.S. 1011,

106 S. Ct. 3311. As has been previously mentioned, the

7 Whether Complainants intend to suggest an actual or

constructive knowledge standard is irrelevant because, as is

more fully discussed below, I find that the statute does not

require a complainant have knowledge of the illegality of his

action(s).

8 The NRC regulation can be found at 10 C.ER. 50.5(c).

Pursuant to this regulation, certain persons, as defined at

50.5(a), in the nuclear industry are subject to enforcement action

in accordance with 10 C.F.R. Part 2, subpart B, for engaging in

deliberate misconduct that causes a violation of law or NRC

regulation. Deliberate misconduct is defined as “an intentional

act or omission that the persons knows” would cause or

constitutes a violation of law or regulation. 10 C.F.R. 50.5(c).

App. 54

statute at issue does not define the terms “deliberately

causes.” Accordingly, the anatomy of the statute itself,

legislative history, and underlying policy wiil aid in the

resolution of the issue. See Generally Kansas Gas &

Elec. Co., 780 F.2d at 1511.

42 U.S.C. §5851, et seq., was designed as “an admin-

istrative procedure” to “offer[ ] protection to employees

who believe they have been discriminated against as a

result of the fact that they have testified, given evidence

or brought suit...” under the AEA or the ERA. English,

683 F.Supp. at 1013 (Citation Omitted). “Employee protec-

tion was the paramount congressional intent.” Id. The

purpose of the statute is to avoid a nuclear catastrophe by

encouraging employees in the nuclear power industry to

report perceived safety violations in good faith without

fear of retribution or retaliation. See, e.g., Rose v. Secre-

tary of Labor, 800 F.2d 563, 565 (6th Cir. 1986). It has also

been opined, however, that there is “a well defined and

dominant national policy requiring strict adherence to

nuclear safety rules. . . . Nothing could he plainer than

the public interest in the safe operation of nuclear power

plants that underlies [the] panoply of federal regula-

tions.” Iowa Elec. Light & Power v. Local Union 204, 834

F.2d 1424, 1427-28 (8th Cir. 1987).

To compound the challenge of interpreting the stat-

ute, the case law interpreting §5851(g) is sparse at best.

Most of the cases which could be found concerned issues

of preemption, see English, supra p. 9; a few cases men-

tioned the section in only a passing reference, see Kansas

Gas & Elec. Co., 780 F.2d at 1510; another case resolved

the issue by finding that the section did not bar the

complaint because it was found that complainant neither

Niles ot io EI EE So 2

App. 55

knew about nor condoned the illegal act, Creekmore v.

ABB Power Sys. Energy Services, Inc., Decision &

Remand Order (Sec’y February 14, 1996) (remanded on

other grounds); and, finally, another case held that com-

plainant’s admission of reading provided answers out

loud during an EPA mandated examination was sufficient

to determine that complainant deliberately participated

in an activity which violated the Act. See Dotson, supra

p- 10 (adopting the ALJ’s Recommended Decision Dis-

missing Complaint October 2, 1995).

There are a few cases wherein §5851(g) was discussed

in an Administrative Law Judge’s Recommended Deci-

sion & Order. The discussions, however, were rendered

dicta because the subsequent Final Order by the Secretary

dismissed the complaints on timeliness grounds. See

Hadden v. Georgia Power Co., 89-ERA-21 (Sec’y Febru-

ary 9, 1994), (ALJ May 21, 1990); McKinney v. Tennessee

Valley Auth., 92-ERA-22 (Sec’y November 16, 1993), (ALJ

March 17, 1992); English v. General Elec. Co., 85-ERA-2

(Sec’y February 13, 1992), (ALJ August 1, 1985). I am

unable to give the recommendations rendered by the

ALJs in the above-cited cases any precedential value

because the Secretary, the body with the power to issue

final decisions in these cases, has rendered a decision on

other grounds.

Complainant has accurately pointed out that there

exists provisions similar to 42 U.S.C. §5851(g) in a

number of other Federal statutes. See Complainants’

Motion, n.18 (Citing 15 U.S.C. §2622(e) (Toxic Substances

Control Act); 33 U.S.C. §1367(d) (Water Pollution Control

Act); 42 U.S.C. §300j-9(i)(6) (Safe Drinking Water Act); 42

U.S.C. §6971(d) (Solid Waste Disposal Act); and 42

App. 56

U.S.C. §7622(g) (Clean Air Act)). The Senate Report

accompanying the ERA provision that was ultimately

enacted notes that the ERA provision is substantially

identical to the provisions in the Clean Air Act and the

Federal Water Pollution Control Act. See S. Rep. No. 848,

95th Cong., 2d Sess. 30 (1978), reprinted in 1978

U.S.C.C.A.N. 7303. I have attempted to locate precedent

interpreting the analogous provision in either or both of

these statutes and have been similarly met with discour-

aging results. See Jackson and Roskam v. Ketchikan

Pulp Co., 93-WPC-7 and 8, at n.3 (Sec’y March 3, 1996),

(ALJ March 10, 1994) (stating the Secretary assumes,

“without deciding, that [Complainant’s] attempt to dis-

pose of a cable into the water did not exclude him from

protection under the WPCA”); Pooler v. Snohomish

County Airport, 87-TSC-1, at n.14 (Sec’y February 14,

1994), (ALJ March 10, 1988) (in which the Secretary

declined to address the arguments pertaining to §2622(e)

because it was not relied upon in the AL)J’s final analysis).

Respondent’s argument is premised upon the Secre-

tary’s adoption of the ALJ’s decision in Drew v. Jersey

Central Power and Light Co., 81-ERA-3 (Sec’y January

13, 1984), (ALJ June 16, 1982). In Drew, the respondent

was attempting to bar Complainant’s claim by invoking

§5851(g). The Secretary held that there was no substantial

evidence that Complainant deliberately caused any viola-

tion of any requirement of the law. The Secretary stated

that on both occasions of the illegal acts,? Complainant

9 The acts occurred on two occasions: (1) Complainant

repaired a defective valve without a prior written approval of

the welding procedure, and (2) Complainant retained an

original copy of an internal non-conformance report.

App. 57

believed he was acting properly. I am unable to discern

the Secretary’s reascning from the text of the decision

itself, which dis#oscs of the §5851(g) issue in a short one

paragraph. The fs case, therefore, provides me little

guidance in the present task.

In support of Complainants’ argument is a Court of

Appeals decision from the Eighth Circuit. See Iowa Elec.

Light & Power, 834 F.2d 1424. The issue in the Iowa

Electric case was whether the respondent would have to

reinstate a complainant who was discharged for deliber-

ately violating important federally mandated safety regu-

lations. The Court stated “we are not concerned with

what [Complainant] says he did not know about the

details [of the federal regulation]. It is enough that he did

know that he was short circuiting an important safety

system required by the federal government as a measure

to protect the public... .” Id. at 1426. It was only in

considering whether the violation was excusable, so as to

warrant reinstatement, that the Court noted the violation

was serious and knowing. Id. at 1429.10

Cognizant of this precedent, legislative history, and

public policies, I cannot adopt Complainants’ interpreta-

tion of §5851(g). To do so would render the section vir-

tually ineffectual because there is the potential that every

complainant would deny knowledge that his deliberately

10 “The Court found the violation was serious and knowing

by inferring complainant knew the safety rule and that the

safety feature was important. After having been denied

permission, complainant deliberately proceeded to defeat that

safety system, thereby committing a knowing violation of the

safety rule. Iowa Elec. Light & Power, 834 F.2d at 1429-30.

App. 58

performed acts were violative of an ERA and/or AEA

provision. Such an interpretation would be in contraven-

tion of the purpose of §5851(g), which is to “avoid abuse

of the protection afforded,” supra p. 10, because the

protection of section (g) would depend greatly upon the

veracity of the complainant, the person whom the legisla-

ture wanted to restrain from abusing the statute.

Moreover, such an interpretation would create a stan-

dard whereby complainants would be expected to make a

determination, prior to doing an act, that the act would

be violative of the ERA and/or AEA. These violations are

adjudicated by this Office and/or determined by the NRC

through investigations and hearings. It is, in fact, the rare

case where an actor commits a violation knowing it to be

a violation. It is, in fact, the common case where an act is

committed that is later discovered to be a violation.

This Judge finds Complainants’ argument that I

should construe the “deliberately causes” language in

§5851(g) similarly to the deliberate misconduct language

in 10 C.FR. 50.5(c) to be without merit. My reasons for

this are twofold. First, the language of the regulation

specifically states it is supplied “for purposes of para-

graph (a)(1) of” that section. Secondly, there is no similar

definition in the Employee Protection section of the NRC

regulations. See Generally 10 C.F.R. 50.7. The language

of the NRC’s Employee Protection regulation actually

mirrors the language of the ERA. See 10 C.F.R. 50.7(a)(3).

Furthermore, I see no reason to apply the definition of

deliberate misconduct to the definition of deliberately

causes because these are two distinct concepts.

App. 59

My interpretation of the statute is further supported

by considering the common usage of the words which are

the center of the present dispute. A respondent must

establish complainant deliberately caused a violation, i.e.,

a respondent must establish a complainant, fully aware of

what he or she is doing and with careful and unhurried

consideration, see Webster’s Dictionary, brought into

existence, id., a violation of the ERA or AEA. It is by

substituting these common definitions for the statutory

words “deliberately causes,” that it becomes even more

evident that there is no requirement that respondent

show complainant had “knowledge” that the act would

be illegal. See Generally Dysert v. Florida Power Corp.,

93-ERA-21 (Sec’y August 7, 1995) (wherein the Secretary

looked, in part, to the common usage of the word “dem-

onstrate” to resolve an issue of statutory interpretation).

This is not to say that respondents in general should

have an easy case of making out the §5851(g) affirmative

defense. See Jackson and Roskam, supra p. 13, (describ-

ing 33 U.S.C. §1367(d) as an affirmative defense);

Hadden, supra p. 13, (describing 42 U.S.C. §5851(g) as an

affirmative defense).!! Applying the Secretary’s analysis

in Jackson and Roskam to the circumstances of this case,

Respondent would have to prove (1) that the act was

done without direction from the employer, (2) that Com-

plainants deliberately did an act, and (3) that the act

11 The ALJ’s recommendation in Hadden describes

§5851(g) as an affirmative defense. As previously mentioned,

the ALJ’s decision is deprived of its precedential value because

of the Secretary’s subsequent decision dismissing on timeliness

grounds. It is cited on this point only for its persuasiveness.

App. 60

caused a violation of ERA or AEA requirements. See

Generally Jackson and Roskam, supra p. 13.

Respondent Florida Power Corporation has met its

burden of establishing the §5851(g) affirmative defense in

this case. Furthermore, Respondent is entitled to have

this claim disposed of by summary decision because all

facts relevant to this defense have been conclusively

established. As is more fully discussed below, there exists

no genuine issue of material fact which would prevent an

entry of dismissal on the basis that Complainants deliber-

ately caused a violation of law.

I will now apply this law to the irrefutable facts of

the case at hand. Complainants did not consult with the

CR-3 Engineering Department before conducting their

acts, either on the 4th or the 5th, Weiss Depo., p. 10; nor

did they consult management or the Shift Manager

regarding their acts, Fields Depo., pp. 52, 80, 418-25;

Weiss Depo., pp. 83-84, 88-89, 253; RX C, Affidavit of

Gregory Halnon, para. 5; RX D, Affidavit of Bruce Hickle,

para. 4; nor did they consult the NRC, Weiss Depo., p.

253; CX 66, NRC Investigative Interview of R. Weiss,

August 31, 1995, p. 19. Complainant Fields does not argue

that he performed these acts at the direction of manage-

ment. Complainant Stewart, however, has stated that he

spoke with his management, referring to Complainant

Fields, the nights of September 4 and 5. Stewart Depo.,

pp. 25, 27, 122. Complainant Stewart describes himself as

a “lowly guy,” who believed Complainants Fields and

Weiss were working with the Manager of Nuclear Opera-

tions, Greg Halnon, all along to resolve the problem

presented by Curve 8. Stewart Depo., p. 121-22. Stewart

App. 61

states that if Complainant Fields ordered him to do some-

thing and Stewart did not see it as an undue risk to the

plant, he would do it because Fields had the authority to

order him to do it. Stewart Depo., pp. 9-10, 36.

Of course, Complainant Stewart admits that neither

Complainant Fields nor Complainant Weiss told him that

they had talked with Greg Halnon; Bruce Hickle, Director

of Nuclear Plant Operations; or Dr. P.M. Beard, Senior

Vice-President of Nuclear Operations, about the tests.

Stewart Depo., p. 123. Stewart describes the issue of the

validity of Curve 8 as being closed out by management if

the crew did not come up with some information to feed

back to engineering. Stewart Depo., pp. 12, 164-65. Fur-

thermore, Stewart states that Van Sicklen was one of the

principal engineers of the curve challenge on the 4th.

Stewart Depo., pp. 39-40. In fact, Stewart describes that

sometime in the middle of the shift on the 5th, Fields,

Weiss and Van Sicklen suggested trying the evolution

again.'!2 Stewart Depo., pp. 68-69. Stewart admits that if

no procedural guidance allowed the crew to perform the

12 Stewart initially attributes the idea to again conduct the

evolution on the 5th to Weiss and Van Sicklen. He later includes

Fields in the group who originated the idea. Of course, during

his OI interview, Stewart seems to indicate that the idea to

conduct the evolution was more of a group decision. See RX 55,

NRC 01 Interview of J. Stewart, December 1, 1994, p. 7 (“And we

talked about the whole situation, said, well, what can we do that

could bring to light what we’re doing, you know, what our

concerns are here. And it was suggested that we put the make-

up tank on the curve”). For purposes of this Motion, I must

construe this evidence in the light most favorable to

Complainants. Therefore, I will assume the idea to re-run the

: evolution on the 5th came, in part, from Complainant Fields.

App. 62

acts, it would have been necessary to notify management.

Stewart Depo., p. 27.

This Administrative Law Judge, assuming all facts in

the light most favorable to Complainant Stewart, still

cannot find that he acted at the direction of his Employer

as is contemplated by §5851(g). At the very least, Stewart

knew the idea of challenging Curve 8 originated with Van

Sicklen, who proposed it to Complainants Fields and

Weiss. At the very least, Stewart knew the proposed acts

originated with and remained within the knowledge of

his fellow crew. Given this minimal knowledge and the

fact that the proposed acts were to be performed on a

primary safety mechanism, Complainant Stewart should

realistically have seen the undue risk to the plant and

sought management approval.

The outcome of Complainant Stewart’s claim that he

performed these acts at the direction of management may

have been different if there were some evidence to the

effect that Stewart believed Fields was taking direction

from upper management. From the testimony of Stewart

himself, however, it is clear that he was aware that the

original idea to challenge the Curve came from Van Sick-

len. In addition, it is only logical to conclude that Stewart

was aware that the evolutions were not directed by man-

agement based on his testimony that the evolutions were

necessary to produce data that would prevent manage-

ment from closing out the issue of Curve 8.

Any similar argument advanced by Complainant

Weiss is similarly insufficient for this Administrative Law

Judge to conclude that Complainant Weiss was acting at

the direction of his employer. In his OI interview, Weiss

App. 63

states Van Sicklen came to him when the Curve 8 issue

appeared to be getting closed out and asked Weiss to

perform acts to verify the curve. See RX 53, p. 7. See Also

Weiss Depo., p. 127. Weiss then discussed the idea with

Fields. Weiss also states that the attempts to resolve the

concerns about Curve 8 were running “into a brick wall”

and that when “nothing happens, then someone’s got to

do something at that point.” CX 66, supra para. 18, at p.

49.

This Administrative Law Judge, having determined

that the acts performed by Complainants on the 4th and

Sth were not directed by the Respondent, will now deter-

mine whether Complainants’ acts were deliberate. Com-

plainant Weiss himself succinctly stated during

deposition that the decision to challenge Curve 8 was a

deliberate and intentional decision. Each Complainant

has affirmed, under oath, that the reason they conducted

the acts was to challenge the validity of Curve 8. The

Complainants allowed the annunciator alarm to remain in

alarm status for extended periods of time in order to

collect the data they perceived they needed to convince

Engineering of the invalidity of Curve 8. The evidence

before this Administrative Law Judge concerning the

issue of Complainants’ deliberateness is overwhelming

and I will simply refer to the Summary of the Evidence,

paras. 4, 6, 7, 8, and 10.

Finally, it is necessary to determine whether the

deliberate actions caused a violation of the ERA or AEA.

Respondent argues “the undisputed facts establish that

the Complainants unquestionably violated the terms of

their operator licenses by intentionally performing two

unauthorized tests on the MUT.” Respondent’s Motion, p.

App. 64

26. The facts upon which Respondent relies in presenting

this argument are the NRC Notice of Violation issued to

Respondent together with its enclosures, RX 58; the NRC

findings, RX 61 and 62; and the NRC OI findings, RX 63

and 64. Respondent suggests “because the NRC has the

sole authority to make such determinations, they are

binding upon and cannot be second-guessed or excused

by another tribunal, including the Department of Labor.”

Respondent’s Motion, p. 28, n.24. I call this quotation a

“suggestion,” rather than an argument, because it is

made as a passing statement in a footnote and is not

supported by any legal authority.

Complainants, of course, argue that whatever the

NRC findings may constitute, they do not constitute a

finding of deliberate misconduct as defined in 10 C.F.R.

50.5(c), which is the standard Complainants wish to have

incorporated into §5851(g). In addition, Complainants

stress the fact that this ALJ is not bound by the NRC’s

conclusions. Complainants’ Response, p. 15, n.8 (Citing

Creekmore, 93-ERA-24 (Dep. Sec’y February 14, 1996), p.

4 (in which the Deputy Secretary opined “the [NRC]

investigation report is a relevant public document of a

Federal agency and I will take notice of it”)). In Creek-

more, the Deputy Secretary reviewed the evidence of

record and concluded that he disagreed with the findings

of the NRC.

The gravamen of Complainants’ argument on this

point is that while Complainants may have violated NRC

regulations, they did so unknowingly. This is supported

by Complainant Fields’ written statements which state,

“If I had realized that the curve represented a design

basis, I would not have authorized performance of the

ELEN MATA ONE II IP, AERA PAB SS SO I MPN IEP Mt PI Pw

App. 65

test... . Although I regret performing the test and caus-

ing a violation, I do not believe that this one event should

be the downfall of a fifteen year career.” RX 32, supra

para. 9, at p. 3. Complainant Fields also writes “Control

room personnel performed an evolution in which we

unknowingly violated a design basis curve without the

proper procedural review.” RX 28, Interoffice Correspon-

dence From D. Fields to J.A. Frijouf, Dated December 6,

1994, p. 2.

In the case sub judice, I have arrived at the conclu-

sion that the uncontroverted facts, as established by Com-

plainants’ own testimony and various documents,

support the NRC’s determination in regards to each Com-

plainant. Accordingly, I have considered the NRC letters

and reports and am persuaded by the findings therein.

This Judge applauds the Complainants for their keen

analysis which led to the discovery of a serious safety

issue. I cannot, however, condone the method by which

they chose to accumulate supporting data for their con-

cern(s). As the NRC has stated, the ends simply do not

justify the means. Therefore, I somewhat regretfully find

that the evidence in this case conclusively establishes

those facts necessary to a 42 U.S.C. §5851(g) defense.

In conclusion, it is necessary to determine whether

this defense bars all or part of the Complainants’ com-

plaints. Complainant Fields filed a fifty-nine (59) page

complaint in this matter, excluding supporting materials.

Both Complainants Weiss and Stewart filed four (4) page

complaints which incorporate the information and docu-

mentation supplied by the Fields complaint. —

App. 66

The Complainants allege Respondent retaliated

against them as a direct result of their disclosure of

violations of the Act, violations of NRC rules and regula-

tions, and their initiation, assistance, and participation in

actions which had commenced, or caused to be com-

menced, a proceeding under the Act. See Fields Compl.,

1 7; Weiss Compl., { 7; Stewart Compl., { 7. Complain-

ants have argued that their complaints state a cause for

protected activity distinct from and unrelated to the Sep-

tember 4th and 5th tests.'° Specifically, Complainant

Fields states he engaged in protected activity which can-

not be barred by the §5851(g) defense when he reported

serious safety concerns with regards to directives issued

by Respondent’s management to maintain critical reactor

support and emergency systems, when he insisted that

Respondent not present misinformation on the Licensee

Event Report, and when he attempted to avoid Respon-

dent placing blame on the operators and the reporting of

management's directives to operate on or near Curve 8.

See Complainants Motion for Reconsideration and Clari-

fication, {{ 2 (Citing Compl., { 3), 12, 16.'* Accordingly,

Complainants argue that the §5851(g) defense does not

operate to bar their entire complaints.

13 See Complainant Fields’ Motion for Reconsideration and

Clarification, { 1; Complainants Weiss and Stewart Motion for

Reconsideration and Clarification, { 2. These Motions, although

prematurely filed, have been considered by this Administrative

Law Judge.

4 Although Complainants Weiss and Stewart are not as

clear as to their allegation of other protected activity, their

Motion for Reconsideration and Clarification might be read to

encompass the same acts as those enumerated by Complainant

Fields.

App. 67

Assuming, as this Judge must, that Complainants

actually engaged in all of these actions,’5 it is not possible

to allow any part of their complaints to survive. Section

5851(g) acts as a complete bar to subsection (a) relief. See

supra, p. 10. See Also English v. General Elec. Co., supra

p- 10. The defense is unqualified, and logically so. Com-

plainants attempt to disentangle their alleged additional

protected activities from the September 4th and 5th tests

is made in vain. Each of the alleged protected activities

which pre-date the tests were related to the Curve 8 issue

and, as Complainants have stated, resulted in the tests

which violated NRC regulations. See Motions for Recon-

sideration and Clarification, {| 2. Finally, the alleged

protected activities which post-date the tests would not

have happened but for the occurrence of the tests.

It is, therefore, determined that the complaints, in

their entirety, have been barred.

8 In considering this Motion for Summary Decision, this

Judge must view the facts in the light most favorable to the

nonmoving party. I will note that the evidence renders

Complainant Fields’ contention that he personally “reported”

safety concerns with regards to management directives to

maintain critical reactor support and emergency systems to be

somewhat dubious. See Motion for Reconsideration and

Clarification, {{ 2 and 4. Cf. Fields Depo., pp. 6, 1. 25 - p.7, 1. 6;

p- 7, ll. 20-24; p. 8, ll. 3-12; p. 21, Il. 13-25; p. 23, 1. 10 - p. 24, 1. 3;

p- 29, ll. 13-25; p. 30, ll. 1-5; p. 31, L. 21 - p. 32, 1. 6. For purposes

of this Motion, however, this Judge shall assume that

Complainant Fields did, in fact, personally engage in this

“reporting.”

App. 68

IV. Conclusion

Based on the foregoing, I hereby recommend that

Respondent’s Motion for Summary Decision be

GRANTED. [| base this recommendation upon an applica-

tion of the uncontroverted facts to an interpretation of 42

U.S.C. §5851(g) which is consistent with that section’s

legislative history and underlying policy; consistent with

the common usage of the relevant terms; and consistent

with what little case law there exists interpreting the

section.

/s/ David W. Dinardi

DAVID W. DINARDI

Administrative Law Judge

NOTICE: This Recommended Decision Dismissing Com-

plaint and the administrative file in this matter will be

forwarded for review to the Administrative Review

Board, U.S. Department of Labor, Frances Perkins Build-

ing, Room S-4309, 200 Constitution Avenue, N.W., Wash-

ington D.C. 20210.

DWD: jw: gcb

SERVICE SHEET

Case Name: David A. Fields, et al.

Case No.: 96-ERA-22

Title of Document! RECOMMENDED DECISION &

ORDER GRANTING

RESPONDENT’S MOTION FOR

SUMMARY DECISION

i dni, eens a

RRR. i tGrent ts eat tee aft itt ine teakeueemeemaaaee

App. 69

This is to certify that a copy of the above-named

document was sent to the following interested parties on

MAR 11 1997

Employment Standards Admin.

Wage & Hour Division

U.S. Department of Labor

Room S-3502, FPB

200 Constitution Ave., NW

Washington, DC 20210

Deputy Associate Solicitor

Division of Fair Labor Standards

Office of the Solicitor

U.S. Dept. of Labor

Room N-2716

200 Constitution Ave, N.W.

Washington, D.C. 20460

Director, Office of Enforcement

Nuclear Regulatory Commission

Washington, D.C. 20555

Deputy Asst. Gen. Counsel/Enforcement

Office of the General Counsel

Nuclear Regulatory Commission

Washington, D.C. 20555

Director, Enforcement & Investigation

Coordination Staff

U.S. Nuclear Regulatory Comm.

Region II, Suite 2900

101 Marietta Street, NW

Atlanta, GA 30323

Barry J. Lentz

Wage & Hour Division

U.S. Department of Labor/ESA

4905 W. Laurel Street, Ste. 300

Tampa, FL 33607

App. 70

David A. Fields

7347 Applewood Drive

Inverness, FL 34450

Robert P. Weiss

7665 W. Laura Lou Lane

Dunnellon, FL 34433

Jack D. Stewart

940 NE 4th Avenue

Crystal River, FL 34428

Rodney E. Gaddy, Esq., Corp. Counsel

Florida Power Corporation

3201 34th Street South

St. Petersburg, FL 33733-4042

David D. Dickey, Esq. (via fax and mail)

de la Parte, Gilbert & Bales

One Tampa City Center

Suite 2300

P.O. Box 2350

Tampa, FL 33601-2350

Morris Weinberg, Jr., Esq. (via fax and mail)

Zuckerman, Spaeder, Taylor & Evans

Barnett Plaza

101 East Kennedy Boulevard, Suite 3140

Tampa, FL 33602

Office of General Counsel

Deputy Assistant General Counsel

for Enforcement

11555 Rockville Pike

Rockville, MD 20852

App. 71

INTEROFFICE MAIL

Reporter

/s/ Gayle C. Bonia

GAYLE C. BONIA

Legal Technician

te ALEAIANN he ibh iE “

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.