Monday, November 24, 2014

Ninth Circuit rules for nuclear whistleblower, Tamosaitis, Part 1

A recent decision of the U.S. Court of Appeals for the Ninth Circuit demonstrates the importance of understanding the purpose of the law. Today, I look at the facts of this case, and the Ninth Circuit's unfortunate holding on the affect of amending an OSHA complaint.  Tomorrow, I will discuss the merits of the case against his former employer, URS.

Dr. Walter Tamosaitis is a professional engineer working for URS Energy & Construction. Since 2003, he had been the Research & Technology (R&T) Manager for the Waste Treatment Plant (WTP) being built in Hanford, Washington. The federal government had condemned the whole town of Hanford in 1943 to build a plutonium production facility for our nuclear weapons program. Over the decades, it generated 53 millions of gallons of radioactive waste. Already, one million gallons have leaked out into ground water and the nearby Columbia River.

Now the government is leading an effort with contractor Bechtel and subcontractor URS to build the WTP. When finished, the WTP is supposed to mix the waste in glass to stabilize it. It needs to stay stable for a long time. The “half-life” of plutonium is 24,000 years. Engineers want ten half-lives of decay to bring the waste close to background radiation levels. That means waiting for 240,000 years.
Another problem with this plan is actually mixing the waste. In 2009, the Department of Energy (DOE) managers asked Dr. Tamosaitis to lead a team to study the engineering problems. By that time, the government had already spent over $500 million on the project. Dr. Tamosaitis told a Senate committee earlier this year that the employees joked about having a bus ticket to get out of town before the WTP ever starts operation. Dr. Tamosaitis responded that he did not have a bus ticket because he intended to see the project through. 
 
Bechtel gave Dr. Tamosaitis a deadline of June 30, 2010, to solve the “M3 mixing issue” and prove it with testing. Bechtel wanted to get a big government reward for meeting this target. Dr. Tamosaitis insisted on a commitment to apply the necessary resources, and he got that commitment. Then, in January 2010, a new Bechtel manager (a politics major, not an engineer) slashed costs and revoked the commitment. The new manager threatened to fire anyone who got in his way. 
 
In March, 2010, DOE Senior Scientist Dr. Donald Alexander raised a concern that mixing the radioactive waste could cause a hydrogen gas explosion, or a runaway nuclear chain reaction. Management told Dr. Tamosaitis to “oppose and kill” this concern. In April 2010, Dr. Tamosaitis reported that Dr. Alexander’s concern was valid. Obviously, Bechtel could no longer meet the June 30, 2010, deadline. Bechtel would either have to give up hope of getting the reward, or lie to the government. They chose to lie. Bechtel began pressuring engineers to go along with their plan or risk losing their jobs. When the Pacific Northwest National Laboratory (PNNL) refused to go along, Bechtel’s plan crashed. Dr. Tamosaitis submitted his reports and emails raising 100 safety concerns.
On June 30, 2010, Dr. Tamosaitis explained his concerns at a meeting. A Bechtel Engineering Manager told him that he should choke on the cherries. Unbeknownst to Dr. Tamosaitis, the politics manager emailed URS the next day saying “Walt is killing us. Get him (out) to your corporate office today”. URS agreed and on July 2, 2010, URS reassigned Dr. Tamosaitis. He lost his staff, but still refused to move to continue his career.

Instead, Dr. Tamosaitis sued. On July 30, 2010, he filed a complaint against “URS, Inc.” with the U.S. Department of Labor (OSHA) under the whistleblower protection of the Energy Reorganization Act (ERA). This is not only within the 180 day time limit under the ERA, it also met the 30-day time limit for the environmental and worker safety laws.
URS Corp. responded to OSHA saying that it was the parent company of URS Energy and Construction – Dr. Tamosaitis real employer. In December 2010, after the OSHA investigation had progressed, Dr. Tamosaitis notified OSHA that he wanted to add Bechtel and the U.S. Department of Energy to his case. It is common that the OSHA investigation will reveal the correct identity of the parties, and it was smart of Dr. Tamosaitis to notify OSHA to include the new parties.
In September 2011, Dr. Tamosaitis’ complaint had been pending at OSHA for over a year without a decision. Again, this is commonplace. Congress has given OSHA responsibility to investigate whistleblower complaints under 22 laws, but has failed to give OSHA the funds needed for all these investigations. Dr. Tamosaitis gave notice that he was exercising his right to file his case in U.S. District Court. OSHA dismissed his case in response to the notice that he was filing in court.

Dr. Tamosaitis filed his case against URS (both the parent and subsidiary) and the U.S. Department of Energy. He filed a separate state court lawsuit against Bechtel for interfering in his contract of employment.

The district court was not as helpful as whistleblowers would want. Instead of recognizing the tremendous service Dr. Tamosaitis gave to the American people and the planet, it looked for ways to dismiss his case. When DOE and URS Corp. complained that the OSHA complaint had been pending against them for less than a full year (just 11 months), the district court agreed to dismiss them. The district court also declared that Dr. Tamosaitis was not entitled to a jury trial because the claim seeks to vindicate a “public right.” Finally, the court said that Bechtel made the decision to eject Dr. Tamosaitis, so URS’ subsidiary was not liable for that either. 
 
Dr. Tamosaitis appealed to the Ninth Circuit. Initially, the appeals court reviewed the facts. The court recognized that nuclear mishaps can lead to a “criticality accident,” especially if combined with hydrogen gas. However, the court misunderstood the nature of radioactive decay. The opinion states that the nuclear waste will “lose its radioactivity” “[o]ver hundreds of years[.]” This time scale of mere centuries would be so much better if it were true. The words “half-life” do not appear in the court’s analysis.

Next, the court looked at the “exhaustion” issue. Since the ERA does not require whistleblowers to exhaust the entire DOL process, but lets them “kick-out” to federal court, I would not call this requirement “exhaustion.” It is actually a charge-filing requirement, not exhaustion. Nevertheless, the court of appeals held that the purpose of the right to kick-out to federal court is to pressure DOL to resolve whistleblower cases more quickly. I think this is the wrong way to look at the kick-out provision. It is not for DOL’s benefit, but rather for the whistlelbower’s benefit. Seen this way, it is natural to conclude that Dr. Tamosaitis followed the correct procedure by filing in federal court once he had waited more than a year for OSHA. Looking through the eyes of the DOL, the appeals court said that Dr. Tamosaitis had not given the DOL enough time to investigate the claims against DOE and URS’ parent company. Their dismissal was upheld. 

This holding is unprecedented to my knowledge, In a footnote, the court agreed that this rule is different from the one used in Title VII cases filed with EEOC. The court said this was because EEOC’s role was to mediate cases whereas DOL-OSHA adjudicates cases. This distinction misses on both marks. EEOC does have the power to adjudicate cases by filing its own cases in federal court. EEOC thankfully does this in many important cases (although it has far to little funding to do it in all the meritorious case). Also, OSHA does not adjudicate cases, but investigates them. OSHA also tries to settle cases, and actually does settle most of the cases in which it finds merit. The outcome here shows the importance of understanding the real purpose of each provision of the law.

By Richard R. Renner

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