DOE wants dismissal from Hanford whistleblower case

Judge Lonny Suko heard the Department of Energy argue to be dismissed from a lawsuit brought by a Hanford whistleblower Thursday, but he declined to rule immediately.

However, the Eastern Washington District U.S. judge indicated how he plans to rule on two of three other motions discussed in Yakima within a lawsuit brought by Walter Tamosaitis, the former manager of research and technology at the Hanford vitrification plant.

Tamosaitis, a Richland resident, has sued his employer, URS Energy and Construction; its parent company, URS Corp.; and DOE, claiming he was removed from work at the $12.2 billion vitrification plant project because he raised safety concerns.

He also sued Bechtel National, the DOE contractor on the project, in Benton County Superior Court, but the lawsuit was dismissed. That ruling is being appealed. URS, Bechtel's subcontractor, and Bechtel deny that Tamosaitis was fired for raising safety concerns.

Suko said Thursday that he planned to dismiss Tamosaitis' wife from the lawsuit, saying the Energy Reorganization Act covered only employees. Tamosaitis' attorney, Jack Sheridan of Seattle, said her name was listed on the case to protect her marital property.

Suko also said he was inclined to grant a URS motion not to try the case with a jury. The Energy Reorganization Act does not provide for a jury, and in more than 30 years, no cases under the act have been tried with a jury, he said.

However, Suko said he plans to do more reading on those issues and continue to consider if DOE should be dismissed from the case.

DOE cannot be held liable under the whistleblower provisions of the Energy Reorganization Act because it is not Tamosaitis' employer, the U.S. Attorney's Office has argued on DOE's behalf.

"We don't pay the man, don't set his hours. His records are with URS," said Rolf Tangvald, assistant U.S. attorney.

The court needs to look at the economic realities of the situation, Sheridan said in court documents.

DOE owns and operates the vitrification plant, and the DOE project director for the plant -- Dale Knutson -- told Bechtel to "accelerate staffing changes" to remove Tamosaitis from the project and said DOE would not pay for Tamosaitis to work on the project, Sheridan said in court documents.

"At most, Tamosaitis has alleged that his employer, URS, transferred him from the (vit plant) because of a suggestion DOE made to Bechtel," DOE said in court documents. "This alone, does not transform DOE into his employer."

DOE's responsibility is contractor oversight, including ensuring contractor employees are protected from retaliation for raising safety or other whistleblower issues, Sheridan said.

DOE also is arguing Tamosaitis has asked the court to grant relief that is not covered by the law. The law allows relief such as reinstatement to a former position and paying compensation, according to DOE court documents.

Tamosaitis is not seeking money from DOE. Instead, he wants the court to prohibit DOE from pressuring employees to take positions not based on scientific principles and to require DOE to draft a plan to ensure a balance between meeting deadlines at nuclear facilities and making sure decisions are based on sound science.

His attorney argued that Congress listed "abate the violation" as the primary remedy in the Energy Reorganization Act and that the court has discretion on how to do that.

DOE's third argument for dismissal is that Tamosaitis did not follow through on other ways to resolve the case before taking it to federal court. A complaint was filed with the Department of Labor, but it was required to remain there for a full year before Tamosaitis is allowed to move the case to federal court, Tangvald said.

Instead, Tamosaitis moved his claim against DOE to federal court after only about 10 months, according to Tangvald.

Sheridan said the claim was filed in July 2010, with DOE added to the complaint in December and a federal court case filed in October 2011, giving the Department of Labor more than a year to investigate and rule.

The clock started running when the initial filing was made, not when DOE was added to the complaint, Sheridan said.

The U.S. Attorney's Office also argued that actions Tamosaitis took -- including raising a list of 50 technical concerns about the plant at a meeting to identify unresolved issues -- did not count as a whistleblower activity. Tamosaitis also did not notify DOE of an alleged violation of the law, the U.S. Attorney's Office argued.

Sheridan countered that Tamosaitis' job was to do nuclear safety work, which made his actions qualify for whistleblower protection when he allegedly lost his job for raising issues, and that DOE regarded him as a whistleblower. URS tried to get Tamosaitis returned to work at the vitrification plant, but Knutson allegedly had said he did not plan to respond to threats of whistleblowing, according to notes made by the URS human resources manager.

Bechtel and URS have argued that plans had been in place for some time to remove Tamosaitis from the project because it planned to wrap up work on certain technical issues when Tamosaitis abruptly was removed after sending an email that DOE considered disrespectful. Sheridan has argued the email was part of Tamosaitis' attempt to make sure issues that could affect the plant's safe operation were addressed.

The fourth motion discussed at the Thursday hearing was URS's request that just URS Energy and Construction remain in the lawsuit and not parent company URS Corp. The judge did not indicate how he planned to rule on that motion.

Suko said he had several trials coming up and that his busy schedule would not allow him to prepare written rulings immediately on the four motions.

This story was originally published May 4, 2012 at 7:19 AM with the headline "DOE wants dismissal from Hanford whistleblower case."