Lewis v. U.S. Department of Labor, No. 08-12114 (11th Cir. 2/24/2010), No. 08-12114.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtPer Curiam
PartiesDAVID L. LEWIS, Petitioner, v. U.S. DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD, Respondent.
Decision Date24 February 2010
Docket NumberNo. 08-12114.

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DAVID L. LEWIS, Petitioner,
v.
U.S. DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD, Respondent.
No. 08-12114.
United States Court of Appeals, Eleventh Circuit.
February 24, 2010.

Petition for Review of a Decision of the Department of Labor, Agency No. 04-117.

Before EDMONDSON, BIRCH and COX, Circuit Judges.

DO NOT PUBLISH

PER CURIAM:


Dr. David Lewis petitions this court for review of the final order of the U.S.

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Department of Labor Administrative Review Board ("ARB") denying his whistleblower complaints against his employer, the U.S. Environmental Protection Agency ("EPA"), brought pursuant to the employee protection provisions of the Clean Air Act ("CAA"), 42 U.S.C. § 7622(a); the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300j-9(i)(1)(A); the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9610(a); the Toxic Substances Control Act ("TCSA"), 15 U.S.C. § 622(a), the Federal Water Pollution Prevention and Control Act ("FWPPCA"), 33 U.S.C. § 1367(a); and the Solid Waste Disposal Act ("SWDA"), 42 U.S.C. § 6971(a). After reviewing the record and the parties' briefs and hearing oral argument, we AFFIRM.

I. BACKGROUND

Lewis holds a doctorate degree in Microbial Ecology from the University of Georgia ("UGA") and has been employed at EPA since 1971.1 At the time he filed his complaints against EPA and at all relevant times, Lewis worked as a GS-15 research microbiologist in the Ecosystems Assessment Branch ("EAB") of the Ecosystems Research Division ("ERD"). The ERD is part of the National Exposure Research Laboratory Division ("NERL"), which is a division of the

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Office of Research and Development ("ORD"). ORD is one of EPA's twelve program offices.2 At all times relevant to this case, either Dr. Paul Gilman or Dr. Norine Noonan was the Assistant Administrator ("AA") for ORD; Dr. Gary Foley was the Director of NERL; Jewel Morris was the acting Deputy Director of NERL; Dr. Rosemarie Russo was the Director of ERD; Dr. Harvey Holm or Dr. Robert Swank was the Research Director of ERD; and Frank Stancil was the Branch Chief of EAB. Lewis' first-line supervisor was Stancil, his second-line supervisor was Russo, and his third-line supervisor was Foley. Lewis did not report directly to either the AA for ORD or the EPA Administrator. In December 1998, Lewis began working with UGA's Department of Marine Sciences under an Intergovernmental Personnel Act ("IPA")3 assignment, which resulted from the settlement of a whistleblower complaint Lewis previously had filed against EPA. During the IPA, Lewis participated in a research project in Egypt, studied cross-infection of Hepatitis C and other pathogens in medical devices, and was engaged in research regarding human exposure to pathogens from dust or water due to the

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spread of sewage sludge on land.

Dr. John Walker is a GS-14 physical scientist in the Office of Waste Water Management ("OWWM"), which is a division of the Office of Water ("OW"). The OW is another one of EPA's twelve program offices. The Municipal Support Division ("MSD") is found within the OWWM, and the Municipal Technology Branch ("MTB") is within the MSD. Walker has no supervisory or managerial duties with respect to his position as a GS-14 scientist. Walker is also OWWM's quality assurance and quality control manager. In this capacity, he is tasked with evaluating EPA documents for suitability before they are disseminated to the public. Walker is supervised by Michael Cook, the Director of OWWM, and Charles Gross, the Branch Chief of MTB.

In 1984, EPA began drafting 40 C.F.R. § 503 ("Rule 503"), which provides guidance to states and industry on how to disinfect sludge generated during the treatment of domestic sewage and safely apply it to land. It has been EPA's policy to encourage the beneficial use of treated sewage sludge (also referred to as "biosolids") and to prevent restrictive local ordinances and bans on its use as crop fertilizer. See 40 C.F.R. § 503.1 (2009). Walker's job duties within OW, which is the program office responsible for providing regulation maintenance to Rule 503, include coordinating with individuals outside EPA who have questions or concerns about the biosolids program. He also serves as the head of the Biosolids Program

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Implementation Team ("BPIT"), a group whose mission is to increase public acceptance of biosolids. Walker is a recognized authority on sewage sludge and is regarded by the biosolids industry as one of EPA's national biosolids spokesmen.

In 1996, Lewis became concerned that heavy metals in sludge may be adverse to the public health and that the effects of pathogens in the sludge were not adequately investigated during the Rule 503 peer review process. In 1998, Finnis Williams, an attorney for the Sierra Club, asked Lewis to be an expert witness in a wrongful death toxic tort case ("Marshall" or "the Marshall case") against Synagro Technologies, Inc. ("Synagro"), a company engaged in the land application of biosolids. EPA gave Lewis permission to serve as an expert witness so long as Lewis regarded his role as an outside activity.4 In his expert opinion reports, Lewis criticized Rule 503 and stated that land application of biosolids may be harmful to the public health. Synagro also sought an expert witness from EPA for the Marshall case, but EPA declined to provide one.

In May 2001, Lewis completed a research article about Rule 503 entitled "Adverse Interactions of Irritant Chemicals and Pathogens with Land-Applied Sewage Sludge" ("Adverse Interactions"), which he hoped to have published in

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Lancet, a prestigious medical journal. In the article, Lewis documented illnesses associated with biosolids and concluded that there was a link between land application of sewage sludge and risks to public health that ought to be thoroughly investigated with epidemiological studies. The paper was cleared for submission to publication on 11 May 2001 and, on 20 May, Lewis submitted it to Lancet to undergo the journal's peer review process. Lewis also provided a copy of Adverse Interactions to Holm, who decided that the article should be sent to Dr. James Smith, a Senior Environmental Engineer with ORD in the Cincinnati, Ohio office, and Chairman of the Pathogens Equivalency Committee, to review for biosolids issues. Lewis forwarded a copy of the article to Smith on 31 May 2001, noting both in the cover email and on the draft itself that the article was confidential. Lewis asked that Smith limit his distribution of the paper to "appropriate individuals" within EPA.5 RE Vol. 1 at 46.

After Hugh McKennon, NERL's Associate Director for Health, ordered a formal EPA peer review of the article, Holm delegated the coordination of the peer review process to Smith. Holm and Smith agreed that Smith would ask Robert Brobst and Robert Bastain, both of whom were members of Smith's Pathogen

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Equivalency Committee, to serve on the peer review panel. Smith also asked Walker, who was present when Smith discussed the peer review with Brobst and Bastain, to participate in the review. Because Walker was technically qualified to review the article, neither Smith nor Walker believed that Walker's inclusion on the panel was problematic or created a conflict of interest. On 3 July 2001, Smith gave Brobst, Bastain, and Walker the article and instructed them to complete the review as soon as possible and to forward their findings to Holm. To effectuate his peer review, Walker forwarded a copy of Adverse Interactions to Dr. Patricia Millner, a microbiologist at the USDA, and asked her to provide him with review comments. He did not inform any of his supervisors that he had shared a copy of the article with Millner. Walker was aware that the paper was marked confidential, but regarded Millner as a colleague and believed her input would be helpful. With Millner's permission, Walker used her comments on Adverse Interactions as part of his peer review.

On 9 July 2001, Walker met with Robert O'Dette, the Executive Vice President of Government Relations, Compliance and Technical Services for Synagro. Both Walker and O'Dette were on the National Biosolids Partnership ("NBP") Committee and frequently met to discuss issues of interest to NBP. At the time of this meeting, the Marshall trial was underway in New Hampshire. Walker was aware of the case and knew that Synagro was troubled by Lewis'

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involvement in it as an expert for the plaintiff. According to O'Dette, Walker told him during this meeting that Lewis had submitted an article regarding the adverse effects of sludge on public health to Lancet for publication and that he, Walker, was conducting a peer review of the article.6 Walker also asked O'Dette to provide him with information about Synagro's biosolids-spreading operation to aid him in his peer review.7 Walker admits that he did not tell his supervisors that he was planning to request such information from Synagro. Walker met with O'Dette again the following day to address Synagro's concern that its request to have an EPA scientist testify as an expert for the defense had been denied. Alvin Thomas, counsel for Synagro, and Cook were also present. According to Walker, they did not discuss Lewis' article at this meeting.

On 11 July 2001, Walker emailed his peer review of Adverse Interactions to members of his management chain, including Alfred Lindsey, the Deputy Director of OWWM, Smith, and Cook, as well as to Bastain and Brobst, with a cover letter stating that the article was of "poor quality" and "alarmist." Id. at 50, 210-11. Walker failed to cite Millner's input and conceded that his peer review was taken

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virtually verbatim from her comments. Walker did not discuss his review with Lewis' supervisors or anyone outside EPA and did not believe that sending his review to his supervisors would harm Lewis' reputation because they had no authority over Lewis' employment. That...

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