Hanford whistleblower Walter Tamosaitis will not have his case heard before a jury in federal court, Judge Lonny Suko ruled Friday in U.S. District Court.
Tamosaitis had filed for a jury trial, but his employer, URS Energy and Construction, filed a motion against a jury.
Jack Sheridan, Tamosaitis' attorney, plans to appeal to the 9th Circuit U.S. Court of Appeals in San Francisco, Sheridan said. Because it is a constitutional issue, he can file the appeal immediately.
Tamosaitis says he believes he was removed from his job in July 2010 as research and technology manager for the $12.2 billion vitrification plant under construction at Hanford, because he raised technical issues about the safe and efficient operation of the plant. URS, which continues to employ Tamosaitis, denies that is why he was removed.
The plant is being built to treat high-level radioactive waste left from weapons plutonium production for disposal. Work has slowed on the plant's largest building, the Pretreatment Facility, as technical issues are resolved.
Sheridan argued that the Seventh Amendment of the U.S. Constitution guarantees the right to a trial by jury.
The Energy Reorganization Act, which protects whistleblowers, was amended in 2005 to allow a complaint to be moved to federal court if the Department of Labor does not act on it within a year.
Tamosaitis originally filed the complaint with the Department of Labor.
But Congress did not amend the act then to provide for a right to a jury trial, Suko wrote in his ruling.
"The fact it has not done so is not without significance and may well be because Congress does not believe the Seventh Amendment requires it," he wrote.
Suko is not aware of a jury having heard an action under the Energy Reorganization Act since it was amended in 2005, he wrote.
Sheridan argued that may be because there has not been a dispute about it. But the judge countered that it is "difficult to believe that any defendant in a district court action under the ERA would not challenge a plaintiff's jury trial demand as the URS defendants have done here or that a court would not at least raise the issue on its own."
Suko also made two other rulings in the case Friday.
He dismissed Tamosaitis' wife as a co-plaintiff, ruling that only employees were protected by the Energy Reorganization Act. Sheridan had told the court she was listed as a plaintiff to protect her marital property.
Suko also granted summary judgment for defendant URS Corp., the parent company of URS Energy and Construction. URS Energy and Construction remains a defendant in the case but the case against the URS Corp. was decided in its favor.
The parent company was not Tamosaitis' employer and Tamosaitis did not exhaust administrative remedies against it, Suko ruled. Tamosaitis filed a claim with the Department of Labor to meet that requirement, but listed the parent company as URS Inc. The claim later was amended to URS Corp., and the claim as amended did not remain with the Department of Labor for the required full year before the federal court case was filed, according to Suko.
The rulings Friday follow Suko's recent dismissal of the Department of Energy as a defendant in the case. Sheridan plans to appeal that ruling, but may not be able to until a judgment is filed, which could come at the conclusion of the case for all the defendants.
Tamosaitis also sued Bechtel National, the DOE contractor on the project, in Benton County Superior Court and the lawsuit was dismissed. That ruling is being appealed. URS is Bechtel's subcontractor on the vitrification plant project.