423 F.3d 483 (5th Cir. 2005), 04-60347, Willy v. Administrative Review Bd.

Docket Nº:04-60347.
Citation:423 F.3d 483
Party Name:Donald J. WILLY, Petitioner, v. ADMINISTRATIVE REVIEW BOARD, United States Dept. of Labor, Respondent.
Case Date:August 24, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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423 F.3d 483 (5th Cir. 2005)

Donald J. WILLY, Petitioner,


ADMINISTRATIVE REVIEW BOARD, United States Dept. of Labor, Respondent.

No. 04-60347.

United States Court of Appeals, Fifth Circuit.

Aug. 24, 2005

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[Copyrighted Material Omitted]

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Donald J. Willy (argued), Houston, TX, pro se.

Mark Edward Papadopoulos (argued), Ellen Randi Edmond, Howard M. Radzely, U.S. Dept. of Labor, Washington, DC, for Respondent.

J. Richard Hammett (argued), Baker & McKenzie, Houston, TX, for Intervenors.

Petition for Review of an Order of the U.S. Department of Labor


WIENER, Circuit Judge:

This case has, since 1984, endured an odyssey through administrative and judicial tribunals, during the course of which it has appeared before us - in one form or another - on four occasions. Petitioner Donald J. Willy now petitions for review from the Department of Labor Administrative Review Board's ("ARB") dismissal of his retaliation claims against his former employers, Coastal Corporation and Coastal States Management (collectively, "Coastal") . Although we grant his petition for review, we reject Willy's challenge to the constitutionality of the ARB under the Appointments Clause of the United States

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Constitution, we vacate the ARB's final decision and order, and we remand in part.


A. Factual History

Coastal hired Willy as an in-house environmental attorney in 1981. Coastal and its subsidiaries are in the petroleum business, including refining oil, marketing oil and gasoline, and transmitting natural gas by pipeline. After a series of events in 1984, Coastal fired Willy.

1. The Belcher Environmental Audit Report

In early 1984, Albin Smith, President of Belcher Oil Company (a subsidiary of Coastal), asked Coastal's legal department to perform an environmental audit of Belcher's facilities. After Willy examined the on-site reviews performed by fellow attorney Troy Webb and a regulatory analyst, George Pardue, Willy concluded in two preliminary draft reports (collectively, "the Belcher Report" or "the Report") that Belcher was exposed to liability for violating several federal environmental statutes.

Webb and other Coastal employees disagreed with Willy's conclusions. Unbeknownst to Willy, Webb sent a memorandum to Smith, stating that Belcher's problems were less serious than Willy's drafts indicated. Pardue conceded that Willy's conclusion that Belcher was illegally polluting was factually accurate, but also told Smith that the tone of Willy's report was "inflammatory." At the end of March, Willy's supervisor, Clinton Fawcett, asked Willy to revise the Belcher Report and to delete reference to some of Belcher's violations. Willy refused, then discussed the matter with Coastal's general counsel, George Brundrett, who agreed with Fawcett's assessment of the Report. Fawcett ultimately made the changes to the Report himself.

Willy testified that he began "getting the cold shoulder" from Fawcett, Brundrett, Webb, and Pardue after this incident. Fawcett later left Coastal's legal department, and William Dunker, a colleague of Willy's in the environmental legal department, became Willy's supervisor. Dunker revisited the Belcher Report and discussed the incident with Webb, who reiterated his opinion that "the whole thing was overblown" by Willy. Dunker told Brundrett that "the report was inflammatory and drew conclusions that I don't like to draw," then told Willy of his concerns.

2. Corpus Christi Refinery

In late 1983 or early 1984, Willy began performing legal work for the Corpus Christi Refinery ("the Refinery"), another Coastal subsidiary. Early in June 1984, at the request of the manager of the Refinery, Willy called the Texas Department of Water Resources ("TDWR") about a closure bond for the refinery.

Webb considered the Refinery his domain. When he visited it in the summer of 1984, he learned that the TDWR had informed Willy that Coastal might be sued because of the Refinery's financial problems. Webb was upset that Willy had not relayed this information to him and considered that Willy was infringing on what Webb regarded as his "turf."

In September 1984, Dunker, who had learned from Webb about the TDWR phone call, held a meeting in an effort to relieve the tension between Webb and Willy. Dunker had prepared a letter of reprimand for Willy, because Webb had complained that Willy had been saying negative things about him and "backstabbing" him. Dunker decided not to deliver the letter to Willy, however, because what Dunker learned at the meeting did not

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satisfy him that Willy had actually acted in the way that Webb had reported.

At the meeting, which Dunker secretly taped, Willy denied having called the TDWR. Dunker telephoned a Refinery employee, expecting to confirm that Willy had placed the call. The employee stated, however, that he did not recall telling Webb and Pardue that Willy had called the TDWR; that he could recall only that he heard that a TDWR employee, Russell Lewis, had said that there might be a lawsuit. The Refinery employee did confirm that Willy and Webb had made disparaging remarks about each other. Willy and Dunker, and sometimes Webb, then engaged in a lengthy exchange about the antagonism that Willy experienced as a result of the Belcher Report.

Soon after the meeting, Dunker called Lewis at the TDWR, and Lewis confirmed that Willy actually had contacted him. Dunker decided to fire Willy and obtained Brundrett's agreement. Dunker first met with Willy and again secretly taped their conversation. At this meeting, Dunker called Lewis and allowed Willy to question him. After Lewis confirmed that Willy had spoken with him about financial assurances, Dunker severely criticized Willy's breach of trust and asked him to resign. When Willy refused, Dunker orally fired him on the spot. An October 1 written termination notice authored by Brundrett states: "The primary purpose for this termination is the fact that you failed to report certain actions taken by you with respect to the Corpus Christi Refinery environmental matters. When asked if you had taken such action, you unequivocably [sic] denied taking such action."

B. Procedural History

1. Complaint to the Department of Labor

In October 1984, Willy filed a complaint with the Department of Labor ("DOL"), alleging that Coastal had violated the whistleblower provisions of several environmental statutes by firing him in retaliation for writing the Belcher Report. Specifically, Willy sued under the Clean Air Act, 1 the Water Pollution Control Act, 2 the Safe Drinking Water Act, 3 the Resource Conservation and Recovery Act, 4 the Toxic Substances Control Act, 5and the Comprehensive Environmental Response, Compensation Environmental Response, Compensation and Liability Act6(collectively, "the Acts").

The Wage and Hour Division ("WHD") of the DOL investigated Willy's complaint and found in his favor. The WHD ordered reinstatement and damages.

2. Administrative Law Judge's Order of Production

Coastal appealed the WHD's ruling and requested a hearing before a DOL administrative law judge ("ALJ"). Willy sought extensive discovery, including introduction of the Belcher Report. Coastal objected to the production of the Report and other documents related to it based on the attorney-client and work-product privileges. Willy filed a motion to compel production, which the ALJ granted. The ALJ relied on Doe v. A Corp.7 in holding that the

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documents, although confidential, were admissible because Willy "could not effectively litigate his claim without access to the documents in question." Coastal refused to comply, and the ALJ ordered Willy to seek enforcement of its order of production in the district court.

3. ALJ's Recommendation of Dismissal

Before Willy could do so, however, the ALJ recommended that Willy's complaint be dismissed in light of our then-recent opinion in Brown & Root, Inc. v. Donovan.8 The ALJ concluded that under the whistleblower provision of the Energy Reorganization Act ("ERA"), "employee conduct which does not involve the employee's contact or involvement with a competent organ of government is not protected." The ALJ found that the language of the ERA's whistleblower provision was substantially identical to the language of those of the Acts under which Willy had sued and that Willy's actions were solely internal. Thus, reasoned the ALJ, Willy's conduct was not protected.

4. Secretary's Reversal of Recommended Dismissal

On appeal to the DOL Secretary, Willy argued that he was terminated in part because he contacted government environmental agencies. The Secretary ultimately rejected the ALJ's recommended dismissal, reasoning that, notwithstanding Brown & Root, Willy did not have an adequate opportunity to prove that he had contacted government agencies and that the Belcher Report constituted protected activity under the Acts. The Secretary also concluded that, contrary to Coastal's arguments, there was nothing in any of the statutes or their legislative histories to indicate that in-house attorneys are excluded from statutory protection. The Secretary further encouraged us to reconsider our holding in Brown & Root in light of the Tenth Circuit's more recent decision in Kansas Gas & Electric Co. v. Brock.9

5. Our Refusal to Intervene

On remand, the ALJ again ordered Willy to seek enforcement of the production order and resolution of Coastal's privilege claims in district court. Willy instead petitioned us under the All Writs Act to resolve the discovery dispute. We declined review, reasoning that "intervention at this time to resolve the discovery would . . . interrupt the administrative process" and that "[i]ntervention at this time is . . . unnecessary."10

6. ALJ's Hearing on Remand

In a March 1998 hearing on remand before an ALJ, Coastal...

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