Rose v. Secretary of Dept. of Labor, 82-3659
| Citation | 800 F.2d 563 |
| Decision Date | 03 September 1986 |
| Docket Number | No. 82-3659,82-3659 |
| Parties | Carl ROSE, Petitioner, v. SECRETARY OF the DEPARTMENT OF LABOR, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Michael J. Davenport (argued), Johnson City, Tenn., for petitioner.
Roger Seigel, Marianne Smith (argued), U.S. Dept. of Labor, Office of the Solicitor, Washington, D.C., for respondent.
Before KENNEDY and KRUPANSKY, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Petitioner Carl E. Rose (Rose) petitioned for review of the Secretary of Labor's decision refusing to investigate his claim of employment discrimination.
Rose was employed as a foreman for Nuclear Fuel Services, Inc. from October 13, 1980 to November 5, 1981. In October, 1981, Nuclear Fuel Service's equipment malfunctioned and a small amount of nuclear material escaped. Rose informed Nuclear Regulatory Commission investigators that an alarm did not sound at the time of the release because it had been improperly installed. The Nuclear Regulatory Commission imposed a monetary penalty against Nuclear Fuel Services as a result of information Rose provided. Rose's employment was terminated on November 5, 1981, the day after Nuclear Fuel Services received notice of the penalty.
The Energy Reorganization Act of 1974 (the "Act"), 42 U.S.C. Sec. 5851, prohibits an employer from discharging an employee for assisting or participating in a Nuclear Regulatory Commission investigation at the employer's facility. The statute provides that an employee who believes that he had been discharged in violation of the Act may file a complaint with the Secretary of Labor within 30 days of his discharge. 42 U.S.C. Sec. 5851(b)(1).
Petitioner Rose did not become aware of his claim under the Energy Reorganization Act until he consulted with attorney Jack Hodges (Hodges) on December 29, 1981. On December 31, 1981, 56 days after his discharge, Rose filed a claim with the Department of Labor, alleging that Nuclear Fuel Services had unlawfully terminated his employment in violation of the Act. Rose requested that the 30 day limitations period for filing his claim be waived since he had not been informed of his rights under the statute until he met with Hodges.
On September 2, 1982, Labor Administrator William M. Otter (Otter) issued a decision stating that the facts in this case were insufficient to warrant tolling of the 30 day limitations period. Otter's decision did not provide petitioner with notice of his right to an administrative hearing and, accordingly, petitioner did not seek administrative review of Otter's determination.
The Department of Labor has issued regulations establishing procedures for the expeditious handling of complaints under the Energy Reorganization Act. See 29 C.F.R. Sec. 24.1 et seq. Pursuant to that regulatory scheme, an individual who believes that he has been discharged or otherwise discriminated against in violation of the Act may file a complaint with the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor. 29 C.F.R. Sec. 24.3. Upon receipt of a complaint alleging a violation of the Act, the Administrator is charged with the responsibility of notifying the employer of the charges and investigating and gathering data concerning the case. 29 C.F.R. Sec. 24.4.
The regulation governing notice of an administrator's adverse decision provides as follows:
(d)(1) Within 30 days of the receipt of a complaint, the Administrator shall complete the investigation, determine whether the alleged violation has occurred, and give notice of the determination which shall contain a statement of reasons for the findings and conclusions therein. Notice of the determination shall be given by certified mail to the complainant, the respondent, and to their representatives. At the same time the Administrator shall file with the Chief Administrative Law Judge, U.S. Department of Labor, the original complaint and a copy of the notice of determination.
(2)(i) If on the basis of the investigation the Administrator determines that the complaint is without merit, the notice of determination shall include, or be accompanied by notice to the complainant that the notice of determination shall become the final order of the Secretary denying the complaint unless within five calendar days of its receipt the complainant filed with the Chief Administrative Law Judge a request by telegram for a hearing on the complaint. The notice shall give the address of the Chief Administrative Law Judge.
29 C.F.R. Sec. 24.4(d)(1)-(d)(2)(i). In the present case, the administrator concluded that petitioner's complaint was without merit because it had not been filed within 30 days of the alleged violation as mandated by the Act and because the facts were insufficient to warrant tolling of the 30 day time limitation for filing the complaint. Accordingly, pursuant to 29 C.F.R. Sec. 24.4(d)(2)(i), the administrator's notice of determination should have included or been accompanied by "notice to the complainant that the notice of determination shall become the final order of the Secretary denying the complaint unless within five calendar days of its receipt the complainant files with the Chief Administrative Law Judge a request by telegram for a hearing on the complaint." The notice given to the petitioner herein was patently defective because it did not contain the information required by 29 C.F.R. Sec. 24.4(d)(2)(i). Accordingly, this court must remand the case to the administrator for issuance of proper notice.
For the reasons set forth above, the case is REMANDED for further proceedings not inconsistent with this opinion.
I concur with Judge Krupansky's opinion, but feel compelled to write separately in order to highlight some concerns.
The complicated statutory and regulatory scheme enacted by Congress and the Nuclear Regulatory Commission was designed to encourage employees like Mr. Rose to report unsafe practices in one of the most dangerous technologies mankind has invented. It is clear that the NRC envisioned substantial employee involvement in the regulatory process. See 10 C.F.R. Sec. 19.11 (), 10 C.F.R. Sec. 19.12 (), 10 C.F.R. Sec. 19.13 (), 10 C.F.R. Sec. 19.14 (), 10 C.F.R. Sec. 19.15 (), 10 C.F.R. Sec. 19.16 ().
When amending the regulations, the NRC explained the need for employee involvement:
The Commission, to effectively fulfill its mandate, requires complete, factual and current information concerning the regulated activities of its licensees. Employees are an important source of such information and should be encouraged to come forth with any items of potential significance to safety without fear of retribution from their employers.
If employees are coerced and intimidated into remaining silent when they should speak out, the results can be catastrophic. Recent events here and around the world underscore the realization that such complicated and dangerous technology can never be safe without constant human vigilance. The employee protection provision involved in this case thus serves the dual function of protecting both employees and the public from dangerous radioactive substances. 1
Carl Rose's actions were highly commendable. He acted in the precise manner Congress hoped workers in his position would act. He reported the escape of radioactivity into the atmosphere to the NRC, which took appropriate steps to protect the public from further danger. The next day, Carl Rose no longer had a job. He turned to the government agency charged with protecting his rights, albeit 26 days later than the 30 day limitation period, and was met with indifference. The Secretary of Labor, required by his own regulations to respond within 30 days of the complaint, 29 C.F.R. Sec. 24.4(d)(1), took over eight months to reply to allegations of illegal conduct on the part of Rose's former employer.
When the Administrator informed Rose of the adverse determination, he was obliged by regulation to outline the procedure for administrative appeal. Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39 L.Ed.2d 270 (1974). However, the Administrator apparently did not, as required, notify the petitioner of his right to appeal his decision to the Chief Administrative Law Judge. To attempt to require Rose to exhaust remedies he was not informed of does not promote administrative accuracy, judicial efficiency or agency autonomy. Rather, it would serve merely to compound the errors and lack of concern already amply demonstrated by the Secretary. Those circuits which have decided this issue are uniform in holding that where agency action or inaction prevents an individual from exhausting his administrative remedies, the administrative agency cannot rely upon that individual's failure to pursue administrative remedies as a basis for precluding judicial review. 2 Goodrich v. U.S. Department of the Navy, 686 F.2d 169 (3rd Cir.1982), cert. denied, 469 U.S. 1189, 105 S.Ct. 958, 83 L.Ed.2d 965 (1985); Ezratty v. Puerto Rico, 648 F.2d 770 (1st Cir.1981); Athas v. United States, 597 F.2d 722, 220 Ct.Cl. 96 (1979); Harr v. Federal Home Loan Bank Board, 557 F.3d 747 (10th Cir.1977), cert. denied, 434 U.S. 1033, 98 S.Ct. 766, 54 L.Ed.2d 780 (1978).
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Rose v. Dole
...period. Thus, the DOL refused to investigate Rose's complaint. Rose petitioned this court for review. In Rose v. Secretary of the Dept. of Labor, 800 F.2d 563, 565 (6th Cir.1986), this court remanded the case to the Secretary because the Secretary had failed to inform Rose in its decision t......