Amicus Curiae Brief — Doyle v. Hydro Nuclear Services

j0TION FILED :

ULI 3 0 2002, 6

No. 02-297

IN THE

Supreme Court of the United States

SHANNON T. DOYLE,

Petitioner,

V.

HYDRO NUCLEAR SERVICES,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF AMICI CURIAE OF LINDA TRIPP, et al.

IN SUPPORT OF PETITIONER SHANNON DOYLE

Colin M. Dunham

Counsel of Record

10010 Greenock Road

Silver Spring, MD 20901

(301) 593-5345

MOTION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF P ETITION

FOR TOF F CERTIORARI

Counsel comes before this Honorable Court pursuant

to Rule 37 of the Rules of the Supreme Court of the United

States of America.

Counsel for Amici respectfully requests this

Honorable Court to grant Amici consent to file an Amicus

Curiae brief in support of petition for grant of certiorari in

the case of Shannon T. Doyle v. Hydro Nuclear Services,

No. 02-297.

Counsel has sought consent from each of the parties

to the case. Counsel has obtained consent to file an Amicus

Curiae brief from two of the parties, viz. Shannon T. Doyle

and the Solicitor-General of the United States. Letters of

Consent from these two parties have been lodged with the

Clerk of the Court.

Counsel has been refused consent by Hydro Nuclear

Services, Respondent in Shannon T. Doyle v. Hydro Nuclear

Services. Respondent gave no reason for its decision.

The amici in this case, Ms. Tripp, Dr. Frederic

Whitehurst and Ms. Adnenne Anderson have all experienced

adverse actions as the result of their whistleblowing activity.

These individuals are very concerned that the Doyle decision

will, if allowed to stand, will add to the immense

discouragement that whistleblowers already suffer. Having

braved an arsenal of employer retaliation, Ms. Tripp, Dr.

Whitehurst and Ms. Anderson are all too aware of the threat

to the public interest posed by the Third Circuit’s decision in

Doyle v. Hydro Nuclear Services.

i

—_ ———e

For these reasons, counsel respectfully requests that

he be permitted to file the attached Amicus Curiae brief on

behalf of Ms. Linda Tripp, Dr. Frederic Whitehurst and Ms.

Adrienne Anderson.

Respectfully submitted

Colin M. Dunham

Counsel of Record

10010 Greenock Road

Silver Spring, MD 20901

(301) 593-5345

li

TABLE OF CONTENTS

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STATEMENT OF INTEREST .................... l

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TABLE OF C A RITIES

Cases

Doyle v. U.S. Secretary of Labor,

285 F.3d 243 (3d. Cir. 2002) ............. passim

Statutes

Clean Air Act (CAA), 42 U.S.C. § 9610 (1994) ......... 2

Energy Reorganization Act,

ek tem Err rege 1,2

Comprehensive Environmental Response, Compensation

and Liability Act, 42 U.S.C. § 9610 (1994) ...... 2

Safe Drinking Water Act, 42 U.S.C § 300j-9(). ........ 2

Solid Waste Disposal Act, 42 U.S.C. § 6971 .......... 2

Water Pollution Control Act

pA ee ee eee eer re 2

Other Authorities

Anderson v. Metro Wastewater Reclamation District,

1997-SDW-7 (Dept of Labor, Sept., 1997) ...... 4

Hobby v. Georgia Power Company,

1990-ERA-30 (Dept. of Labor, Feb.,2001).. ... 5

li

Tainting the Evidence: Inside the

Scandals at the FBI Crime Lab,

Dr. Frederic Whitehurst (New York 1998)..... ...... 2

State Whistleblower Statutes and the

Future of Whistleblower Protection

Robert Vaughn, 51 Admin. L. Rev. 581 (1999) ....... 2

ili

STATEMENT OF INTEREST OF AMICUS CURIAE’

As whistleblowers of some public standing, amici,

Ms. Linda Tripp and Dr. Frederic Whitehurst are well

positioned to speak from experience concerning the

intimidating nature on whistleblowers that the Third

Circuit’s decision in Doyle v. Hydro Nuclear Services will

have if allowed to stand. Ms. Adrienne Anderson undertook

activities protected by the ERA and suffered the full force

and fury of adverse actions by her employer, including a

campaign of vituperative personal criticism. If she had

signed the type of waiver required of Mr. Doyle by Hydro

Nuclear Services, her willingness to expose the injurious

conduct of her employer would have been greatly weakened.

In each case, these individuals have experienced

harassment, retaliation and employment discrimination as a

result of exposing instances of employer misconduct

harmful to the public good.

It is difficult to exaggerate how vital avenues of legal

redress are to those courageous employee-whistleblowers,

both actual and potential, who put the safety, integrity and

health of the commonweal before their own careers.

Protecting the future employment and careers of these

individuals is an essential component in encouraging

employees to reveal severe abuses of power and dangerous

institutional practices gravely prejudicial to the public good.

' Pursuant to S.Ct. Rule 37.6, Amici state that counsel for a

party did not author the brief in whole or in part and that no one other

than Amici, their members or their counsel have made any monetary

contribution to the preparation or submission of this Brief.

l

Had the Doyle decision had been the law of the land

at the time and the waiver requirement part of their

respective employment contracts, it is doubtful whether the

nefarious activities revealed by Ms. Tripp, Dr. Whitehurst

and Ms. Anderson would have come to light. It is surely

an incontrovertible fact that, even under the best of

circumstances, whistleblowers run enormous career risks.

If employers are able, as the Doyle decision now

teaches, to require prospective employees to waive an

employer’s liability for adverse action taken on the basis of

an applicant’s previous whistleb)owing activity, then

whistleblowers face even greater disincentives to expose

employer misconduct.

ARGUMENT

The very reason for the creation of whistleblower

protection provisions both at the state and federal level, is

that conscientious employees should not have to choose

between keeping their jobs and their moral and legal

obligation to report actual or probable violations of law by

their employers. This is, however, the choice that will

effectively be thrust upon many such employees if employers

are allowed to insist on their employees signing waivers such

as the one at issue in Mr. Doyle’s suit. The waiver in Mr.

Doyle’s case releases his employer and any other employer

from whom his employer obtained information about him

from any claim that this information had been provided or

used to deny Mr. Doyle employment because of his

whistleblower activities. Should employers be allowed to

require their employees to sign such waivers, the right of

employees to file a complaint of illegal blacklisting could be

eliminated. This would completely discourage employee-

whistleblowers from even seeking a position with employers

who used waivers like the one at issue in Mr. Doyle’s case.

Furthermore, the use of such waivers in employment

contracts would undoubtedly have a chilling effect on any

would be whistleblowers. This runs counter to the policies

underlying all whistleblower protections, not just those

provided by Section 210 of the Energy Reorganization Act.

Therefore, the Court should grant Shannon Doyle’s Petition

for a Writ of Certiorari and review the decision of the Unites

States Court of Appeals for the Third Circuit.

Frequently the efforts of employee-whistleblowers to

expose an employers wrong doing are rewarded by vicious

and discriminatory responses by the employer. Congress

recognized the need to protect employee-whistleblowers

from this sort of discrimination when it amended the Safe

Drinking Water Act (SDWA), the Clean Air Act (CAA), the

Energy Reorganization Act (ERA), the Comprehensive

Environmental Response, Compensation, and Liability Act

(CERCLA), the Toxic Substance Control Act (TSCA), the

Solid Waste Disposal Act ((SWDA), also known as the

Resource Conservation and Recovery Act, (RCRA)), and the

Water Pollution Control Act (WPCA). See Safe Drinking

Water Act (SDWA), 42 U.S.C. § 300j-9(T) (1994); Clean Air

Act (CAA), 42 U.S.C. §7622 (1994); Energy Reorganization

Act (ERA), 42 U.S.C.§ 5851 (1994); Comprehensive

Environmental Response, Compensation and Liability Act

(CERCLA), 42 U.S.C. § 9610 (1994); Solid Waste Disposal

Act (SWDA), 42 U.S.C .§ 6971 (1994); Water Pollution

Control Act (WPCA), 33 U.S.C.§1367 (1994). Many states

have also recognized the need to protect public and private

whistleblowers from such discrimination. See generally

Robert Vaughn, State Whistleblower Statutes and the Future

of Whistleblower Protection, 51 Admin L. Rev. 581 (1999).

A glance at the disgraceful treatment of the Amici, in

response to their protected activities, reveals the harsh nature

of the discrimination faced by many employee-

whistleblowers. Frederic Whitehurst, whose story was told

in Tainting Evidence: Inside the Scandals at the FBI Crime

Lab (New York: The Free Press, 1998), was subjected to a

campaign of harassment and degradation in response to his

attempts to report a pattern of wrongdoing in the FBI crime

lab. Dr. Whitehurst pursued his complaints internally for

more than three years, and, only after seeing no result, did

Dr. Whitehurst turn to the outside. In response, the FBI and

the Office of Investigator General claimed that Dr.

Whitehurst was unfit for FBI work, because he recklessly

reported wrongdoing. In reality, Dr. Whitehurst was merely

acting in accordance with his duty to follow FBI regulations,

which demand that each FBI employee report any possibility

of any wrongdoing.

Similarly, Ms. Linda Tripp has also been subjected to

a campaign of discrimination and harassment in response to

her efforts to report wrongdoing in the Whitehouse. In

retaliation for Ms. Tripp’s having provided evidence to the

Office of Independent Counsel, which eventually resulted in

the impeachment of President Clinton, the Defense

Department leaked information from government files to

discredit and malign her. As a result of this, Ms. Tripp,

whose work performance was consistently rated as

outstanding, has faced severe difficulties in obtaining

employment, even at a lower grade and salary.

Ms. Anderson faced severe harassment and

discrimination from her employer, the Metro Wastewater

Reclamation District (A Metro) in Colorado, for expressing

serious concerns of Metro workers to other members of the

Board of Directors for Metro. Metro repeatedly attacked Ms.

Anderson’s credibility through the media, damaging her

professional reputation, and her ability to obtain future

employment. In finding for Ms. Anderson in her

whistleblower claim against Metro, the Administrative Law

Judge noted that the hardship imposed on Ms. Anderson by

Metros attacks was evidenced not only by the fact that she

was not reappointed to the Board of Directors for Metro, but

also by the fact that she had since been unable to obtain a full

time position at the University of Colorado, where she had

been teaching part time. See Anderson v. Metro Wastewater

Reclamation District, 1997-SDW-7, at 32-33 (Dept of Labor

Sept., 1997).

Regrettably, far too many whistleblowers and would

be-whistleblowers are subjected to similar treatment by their

5

employers. If employers are permitted to make waivers like

the one at issue in Mr. Doyle’s case a precondition of

employment, then many of these whistleblowers could be

forced to forfeit their rights to be free from illegal

blacklisting in order to obtain employment. This would have

a substantial chilling effect on the protected activity of

whistleblowers. An employee whose conscience demands

that he or she report an employers wrong doing, might be

sorely tempted not to come forward with information

because of fears that he or she might be blacklisted and have

' no available remedy.

Whistleblowers seeking jobs would almost assuredly

be discouraged from seeking employment with any company

or agency that required them to sign a release that might

prevent them from pursuing a valid claim for illegal

blacklisting. Judge Bright, in his dissenting opinion in Doyle

v. U.S. Secretary of Labor, 285 F.3d 243, 255 (3d Cir. 2002)

(Bright dissenting), noted that it was quite probable that any

layperson would have understood the release that Mr. Doyle

was asked to sign to mean that he or she would release

former employers as well as putative employers from liability

for any harm caused by releasing information about the

employee. Although the Third Circuit noted, in its analysis,

that as interpreted by Mr. Doyle, the release would have been

unenforceable (Doyle, 285 F.3d at 252); this is small comfort

to whistleblowers like Mr. Doyle, who lack the legal training

to know that the waiver could not be used by the employer as

a defense to a retaliation claim. Furthermore, it would be

absolutely repugnant to many whistleblowers, who above all

else prize the integrity of their word, to use a technicality in

the language of the waiver to attempt to get around a promise

they believed they were making to release former as well as

putative employers from any liability for any harm caused by

releasing information about the employee. These reasons

6

support the views adopted by both the Secretary of Labor and

Judge Bright: that employees must not be compelled to sign

what they believe to be a waiver of past and future ERA

claims as a condition of employment. Doyle, 285 F.3d at

254-55 (Bright dissenting).

Waivers such as the one at issue in Mr. Doyle’s case,

in so far as they discourage employee-whistleblowers from

ever applying for jobs with the companies or agencies that

use them, could further chill any disclosures of employer

wrongdoing by would be whistleblowers. The

Administrative Law Judge in Hobby v. Georgia Power

Company, 1990-ERA-30, at 7 (Dept of Labor Feb., 2001)

noted that one reason why reinstatement is an important

remedy in many whistleblower actions is that, a return of a

discharged employee to the job site provides concrete

evidence to other employees that the legal protections of the

whistleblower statutes are real and effective. Similarly, if

employee-whistleblowers are discouraged from even

applying for positions where they might be required to sign

waivers such as the one at issue in Mr. Doyle’s case, then

other employees might well begin to doubt whether the legal

protections of the whistleblower statutes are Areal and

effective. This could lead to a significant chilling effect on

ay potential disclosure of employer wrongdoing by

whistleblowers.

CONCLUSION

For the reasons set forth above, the Court should

grant Shannon Doyle’s Petition for a Writ of Certiorari and

review the decision of the Unites States Court of Appeals for

the Third Circuit.

Respectfully Submitted,

Colin M. Dunham

Counsel of Record

10010 Greenock Road

Silver Spring, MD 20901

(301) 593-5345