A federal judge has dismissed the Department of Energy from a federal lawsuit brought by Hanford whistleblower Walter Tamosaitis.
Judge Lonny Suko in Eastern Washington U.S. District Court ruled that Tamosaitis could not make his case against DOE on any of three grounds. The ruling does not affect Tamosaitis' case against his employer, URS, which is part of the same lawsuit and will move forward.
DOE moved that the lawsuit be dismissed because Tamosaitis had asked for relief the court did not have authority to grant, DOE was not his employer and he failed to leave a claim with the Department of Labor for a sufficient length of time before transferring it to federal court.
Tamosaitis sued DOE, URS Energy and Construction and its parent company URS Corp., claiming he was removed from his job as research and technology manager at the $12.2 billion Hanford vitrification plant project because he raised safety concerns. URS denies he was removed from working on the vit plant because he raised safety concerns and continues to employ him.
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Tamosaitis first filed an administrative complaint July 30, 2010, with the Department of Labor and amended it Dec. 15, 2010, to add DOE to the complaint.
The Department of Labor had one year to act, then Tamosaitis legally was free to move the complaint to federal court. With no action by the Department of Labor more than a year after the original complaint was filed, Jack Sheridan, Tamosaitis' attorney, filed the federal lawsuit Nov. 9, 2011.
However, the lawsuit should not have been filed until Dec. 15, 2011, a year after DOE was added, which meant Tamosaitis had not exhausted his administrative remedies as required before filing suit, Suko ruled.
Suko also concluded Tamosaitis is not a DOE employee because DOE did not hire him and there is no contractual relationship between DOE and Tamosaitis. DOE has a contract with Bechtel, and Tamosaitis works for Bechtel's primary subcontractor, URS.
Sheridan argued that Dale Knutson, the outgoing DOE project director for the vitrification plant, conspired with Bechtel manager Frank Russo to remove Tamosaitis from the project, citing an email from Knutson to Russo.
In the email, Knutson told Russo to "use this message to accelerate staffing changes or to color your conversations" with Scott Ogilvie, the Bechtel National president.
"It is necessary to read quite a bit into Knutson's email to describe it as a 'directive' to specifically remove Dr. Tamosaitis," the judge wrote in his order.
In addition, a purported statement by Knutson that he would not pay for Tamosaitis to work on the project "is derived from hearsay upon hearsay," the judge wrote.
The email and statement do not establish that DOE controlled the manner and means of Tamosaitis' work for URS, he wrote.
Tamosaitis had asked for a judgment that prohibits DOE from pressuring employees to take positions not based on scientific principles and requires DOE to draft a plan to ensure a balance between meeting deadlines at nuclear facilities and making sure decisions are based on sound science.
However, the relief allowed by law is limited only to the individual and particular misconduct involved, and the relief request "goes far beyond remedying the alleged retaliation against Dr. Tamosaitis," the judge wrote.
"The court does not have jurisdiction to grant this type of relief," he wrote.
Suko has signed an order granting DOE's motion to dismiss DOE but has not filed a judgment that can be appealed, Sheridan said. A judgment may not be filed until the case against URS also is decided.
Sheridan plans to file an appeal as soon as legally allowed with the 9th U.S. Circuit Court of Appeals in San Francisco.
Tamosaitis also sued Bechtel National in Benton County Superior Court, but that lawsuit was dismissed. That ruling is being appealed.