Hill v. U.S. Dept. of Labor
| Decision Date | 28 September 1995 |
| Docket Number | No. 94-3641,94-3641 |
| Citation | 65 F.3d 1331 |
| Parties | 11 IER Cases 16 Charles HILL, et al., Petitioners, v. UNITED STATES DEPARTMENT OF LABOR; Tennessee Valley Authority, Respondents. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Lynne Bernabei (argued), Michael Subit (briefed), Bernabei & Katz, Washington, DC, for petitioners.
Lynne Bernabei (argued), Bernabei & Katz, Washington, DC, for Austin L. Elliott, Charles A. Daley, Earl R. Petersen, Kay E. Stephens, Edwin Chauvin, Dorothy Moebius, Steve P. Hans, Donald Roberts, Linus C. Issinghoff.
Marva Peace-Jackson (argued and briefed), William J. Stone, U.S. Department of Labor, Office of the Solicitor, Washington, DC, Jackson Woodall, Tennessee Valley Authority, Knoxville, TN, Robert B. Reich, Secretary of Labor, Department of Labor, Washington, DC, for United States Department of Labor.
Justin M. Schwamm, Sr., Asst. Gen. Counsel (briefed), Thomas F. Fine, Sr. Litigation Atty. (briefed), Brent R. Marquand (argued), Jackson Woodall (briefed), Tennessee Valley Authority, Knoxville, TN, for Tennessee Valley Authority.
Before: LIVELY, MARTIN, and DAUGHTREY, Circuit Judges.
The question in this case is whether the limitations period contained in a federal remedial statute should have been equitably tolled. The petitioners are employees of a company that contracted to provide services
to a federal agency and whose contract was terminated for reasons the petitioners contend violated a federal statute. The Secretary of Labor found that the petitioners filed their administrative complaint after the applicable statute of limitations had expired and dismissed the complaint. The petitioners appeal, arguing that fraudulent concealment by the agency tolled the statute of limitations. Upon consideration of the briefs, oral arguments of counsel and the record, we deny the petition for review and affirm the decision of the Secretary.
In April 1985, the Tennessee Valley Authority (TVA), a wholly-owned corporate agency and instrumentality of the United States, was seeking an operating license for its Watts Bar facility from the Nuclear Regulatory Commission (NRC). The NRC notified TVA that TVA employees had anonymously raised a number of safety concerns related especially to the nuclear plant under construction at Watts Bar. Consequently, in May 1985, TVA entered into a one-year personal services contract for an amount not to exceed $3.6 million with Quality Technology Company (QTC), a consulting and investigative service. QTC was to develop and implement a program for the identification, investigation, and reporting of issues raised by TVA employees concerning the safety of TVA's nuclear facilities.
QTC developed an employee concern program, the Employee Response Team (ERT), to accomplish these goals. QTC worked under the direction of TVA's Nuclear Safety Review Staff (NSRS). An important part of QTC's contract was the requirement that it maintain confidentiality to protect the employees who raised concerns from possible retaliation by TVA. After the first month of interviews, it became apparent that the employees' concerns far exceeded the expectations of TVA and QTC.
In September 1985, at the request of Representative James Cooper (D.Tenn.), QTC made a presentation to him and other members of Congress concerned with the problems at TVA. TVA representatives attended the meeting. QTC employees also briefed NRC Commissioner James Asselstine and key members of the NRC staff about QTC's findings through the ERT. After this briefing, TVA officials questioned some of the petitioners about their remarks to the NRC. By this time the parties had modified the contract twice, providing for increased payments to QTC.
In September and December 1985 the NRC evaluated the ERT and QTC's performance as generally satisfactory. Under mounting criticism from the NRC of TVA's management of the safety concerns program, TVA considered expanding QTC's role once again. On December 17, 1985, TVA officials met with QTC's President, Owen Thero, and W.S. Schum to discuss the new plan suggested by QTC. Under this proposal, a Management Review Group (MRG) would be formed to review safety concerns and formulate corrective actions, and QTC would assume the management of investigations into employee concerns as a voting member of the MRG. In accordance with TVA's request, on December 27, 1985, QTC submitted a written contract proposal, totaling $11.48 million, to cover its expanded role at TVA under the new plan.
In the meantime, TVA was also investigating other methods to confront its safety problems. In mid-October and November 1985, high-ranking TVA officials met with consultants in the nuclear field to discuss TVA's problems. These consultants included Edward Siskin, William Wegner, and retired Admiral Steven White. TVA officials told the group that the most significant issue facing the Watts Bar program was the employee complaints to QTC and that QTC was finding too many problems. These consultants conducted an inspection of TVA's program in November of 1985 and concluded that the most serious problem faced by TVA concerned its nuclear program management. The petitioners claim they had no knowledge of TVA's involvement with the outside experts.
On January 3, 1986, TVA entered into a contract for Admiral White to serve as Manager On January 23, QTC contacted TVA to discuss the letter. After an apparently heated meeting on January 24 that was requested by QTC, the parties agreed that QTC would finish safety concerns investigations that were 80% complete and would develop a system to expurgate employee concern files without violation of employee confidentiality. For these purposes, the parties entered into a fourth amendment to the original contract increasing the contract amount by another $750,000.
of its Office of Nuclear Power for two years. White's agreement with TVA gave him direct authority to manage, supervise, and control TVA's entire nuclear program, including the power to terminate the QTC contracts. White assumed his duties at TVA on January 13, 1985, arriving with a group of close advisors including Messrs. Wegner and Siskin. By letter dated January 22, TVA advised QTC that it was not accepting the latter's December proposal and that it had decided to limit QTC's role in resolving safety concerns. The letter stated that the reason for the phase-out was that TVA no longer needed QTC since QTC had completed its work under the first phase of the TVA Employee Concern Program. All QTC's contracts were then to expire April 30, 1986.
The reduction of QTC services immediately became a public issue, with numerous press releases and newspaper articles. In some of their press releases, TVA stated that it phased out QTC's contract because it was lazy, costly, and inefficient. QTC officials were also quoted as disagreeing with TVA's decision.
At the request of Representative Cooper, QTC and TVA officials traveled to Washington to discuss the situation. When Admiral White arrived, he refused to talk with QTC and told Representative Cooper that he would have to excuse the QTC representatives from the meeting or he (White) was leaving. After talking with White privately, Representative Cooper told the QTC officials, "You guys are dead."
On March 28, 1986, TVA terminated the QTC contract altogether. After conducting its own investigation in April of 1986, the NRC concluded that the termination of the QTC contract was an internal management decision.
On September 22, 1986, an article appeared in the Knoxville Journal where Wegner of TVA was quoted as saying, On October 16, 1986, the petitioners, former employees of QTC, filed a complaint with the Department of Labor, alleging that TVA violated Sec. 210 of the Energy Reorganization Act (ERA), 42 U.S.C. Sec. 5851, a "whistleblower" law. The alleged violation consisted of narrowing the scope of QTC's safety responsibilities and eventually terminating QTC's contract in retaliation for QTC's investigation, corroboration, and public disclosure of nuclear safetyrelated problems complained of by TVA employees.
An Administrative Law Judge (ALJ) issued a Recommended Order dismissing the complaint on the ground that the petitioners were employees of QTC, not of TVA, and therefore were not covered by the antidiscrimination provisions of the ERA. The petitioners appealed to the Secretary of Labor who issued a Decision and Order of Remand, holding that because the petitioners were "employees" and the TVA an "employer" within the meaning of the ERA, they were covered by the Act's antidiscrimination provisions. TVA did not seek review of this holding. The Secretary refused to rule on TVA's motion to dismiss the complaint on the basis of untimeliness, concluding that, on remand, "Complainants will have the burden of proving that the facts justify application of the doctrine of equitable tolling."
After extensive discovery and hearings between June and November of 1990, a different ALJ issued a Recommended Decision and Order dismissing the petitioners' complaints as untimely and finding that there were no grounds for tolling the 30-day time limit contained in the ERA. 42 U.S.C. Sec. 5851(b)(1) (1988).
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