[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 04/21/99 No. 98-2614 THOMAS K. KAHN CLERK
D. C. Docket No. 97-070(ARB); 96-ERA-22(ALJ)
DAVID A. FIELDS, ROBERT P. WEISS, et al.,
Petitioners,
versus
UNITED STATES DEPARTMENT OF LABOR ADMINISTRATIVE REVIEW BOARD,
Respondent.
Appeal from a Final Decision and Order of the United States Department of Labor’s Administrative Review Board
(April 21, 1999)
Before MARCUS, Circuit Judge, HILL, Senior Circuit Judge, and ADAMS*, District Judge.
______________ *Honorable Henry Lee Adams, Jr., U. S. District Judge for the Middle District of Florida, sitting by designation.
PER CURIAM: Petitioners David A. Fields, Robert P. Weiss and Jack D. Stewart appeal the
final decision and order issued by the Administrative Review Board (ARB) of the
Department of Labor (DOL), accepting the recommendation of the DOL
Administrative Law Judge (ALJ), granting Florida Power Corporation’s (FPC) request
for summary decision and dismissing petitioners’ complaints under the employee
protection (or whistleblower) provision, Section 211, of the Energy Reorganization
Act of 1974 (ERA), as amended, 42 U.S.C. § 5851(1)(D)(1988).1 The provisions
subsumed under Section 211 prohibit an employer from discharging or discriminating
against an employee who has engaged in protected activities. Petitioners contend that
the ARB’s finding that their complaints were barred under the affirmative defense
1 Section 211(a), 42 U.S.C. § 5851(a), provides in relevant part:
(1) No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee . . .
(A) notified his employer of an alleged violation of this Act or the Atomic Energy Act of 1954 (42 U.S.C. § 2011 et seq.);
***
2 provision of Section 211(g)2 is not supported by substantial evidence. We disagree
and affirm.
Petitioners were control room operators at FPC’s Crystal River 3 nuclear power
plant (the plant). They were concerned that maintaining hydrogen pressure in
accordance with FPC’s mandated procedure (designated Curve 83) was unsafe and
notified the engineering department. They were not satisfied with the engineering
department’s assurance that maintaining pressure according to Curve 8 was “accurate
and reasonably conservative.” Petitioners felt that their safety concerns had not been
adequately addressed and that they needed to respond. In order to obtain data that
would show whether their concerns about Curve 8 were valid, petitioners decided to
conduct their own tests. They contend that they believed the tests complied with
existing procedures and were within their authority to perform. Petitioners claim that,
as licensed nuclear operators, they owed a duty to the public to verify a critical safety
issue that they believed was being ignored by FPC.
2 Section 211(g), 42 U.S.C. § 5851(g), provides:
Subsection (a) of this section [prohibiting discrimination] shall not apply with respect to any employee who, acting without direction from his or her employer (or the employer’s agent), deliberately causes a violation of any requirement of this chapter or of the Atomic Energy Act of 1954, as amended [42 U.S.C. § 2011 et seq.]. 3 For further background and description as to the nuclear tests performed, refer to the background section of the ARB’s Final Decision and Order dated March 1, 1998.
3 The undisputed facts are that in September 1994, petitioners performed tests on the
plant’s nuclear reactor during two midnight shifts, while the nuclear reactor was
operating at full power. On the first night, September 4, their actions triggered an
alarm light for forty-three minutes. Petitioners ignored the alarm and continued.
When the September 4 data proved inconclusive, they tried again. On the second
night, September 5, petitioners told an auxiliary building operator to “dress out” in
protective clothing, to allow him to vent hydrogen quickly should an accident occur.
This time the alarm light was triggered for thirty-five to thirty-seven minutes.
Following the September 5 test, petitioners prepared a problem report. They
did not mention the September 4 test. In response to the problem report, FPC
transferred petitioners to positions other than as control room operators. The Nuclear
Regulatory Commission (NRC) instituted an investigation. When FPC subsequently
learned of the September 4 test, it discharged Weiss and Fields and transferred Stewart
out of operations with a written reprimand.
Thereafter petitioners filed this Section 211 discrimination action with the
DOL, alleging that FPC disciplined them, demoted Stewart, and discharged Fields and
Weiss because they were engaging in activities protected under the ERA. After an
evidentiary hearing, the DOL ALJ concluded that the undisputed facts provided
overwhelming evidence that petitioners had acted deliberately and without direction
4 from FPC management when they twice conducted unauthorized tests on the nuclear
reactor. He issued a recommended decision and order granting FPC’s motion for
summary decision. Petitioners appealed to the ARB. In its final decision and order,
the ARB accepted the recommendation of the ALJ, concluding that FPC’s decision
to discharge and demote petitioners was based upon petitioners’ “reckless disregard”
as to whether a nuclear safety violation would occur and that they “deliberately caused
a violation” of nuclear safety regulations. Finding no genuine issue of material fact,
the ARB determined that FPC had established a valid Section 211(g) affirmative
defense as a matter of law and dismissed the complaints. Petitioners now complain
that the ARB erred in finding that they had acted without direction from FPC
deliberately to cause violations of NRC requirements.
In reviewing cases arising under the ERA, we are required to conform to the
standard of review set forth in the Administrative Procedure Act. 42 U.S.C. §
5851(c)(1). Thus the ARB decision will be overturned only if it “is unsupported by
substantial evidence or if it is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A), (E); Kahn v. Secretary
of Labor, 64 F.3d 271, 276 (7th Cir. 1995)(citing Lockert v. U.S. Dep’t of Labor, 867
F.2d 513, 516-17 (9th Cir. 1989)); see also Stone & Webster Engineering Corp. v.
Herman, 115 F.3d 1568, 1571 (11th Cir. 1997). The substantial evidence test is no
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 04/21/99 No. 98-2614 THOMAS K. KAHN CLERK
D. C. Docket No. 97-070(ARB); 96-ERA-22(ALJ)
DAVID A. FIELDS, ROBERT P. WEISS, et al.,
Petitioners,
versus
UNITED STATES DEPARTMENT OF LABOR ADMINISTRATIVE REVIEW BOARD,
Respondent.
Appeal from a Final Decision and Order of the United States Department of Labor’s Administrative Review Board
(April 21, 1999)
Before MARCUS, Circuit Judge, HILL, Senior Circuit Judge, and ADAMS*, District Judge.
______________ *Honorable Henry Lee Adams, Jr., U. S. District Judge for the Middle District of Florida, sitting by designation.
PER CURIAM: Petitioners David A. Fields, Robert P. Weiss and Jack D. Stewart appeal the
final decision and order issued by the Administrative Review Board (ARB) of the
Department of Labor (DOL), accepting the recommendation of the DOL
Administrative Law Judge (ALJ), granting Florida Power Corporation’s (FPC) request
for summary decision and dismissing petitioners’ complaints under the employee
protection (or whistleblower) provision, Section 211, of the Energy Reorganization
Act of 1974 (ERA), as amended, 42 U.S.C. § 5851(1)(D)(1988).1 The provisions
subsumed under Section 211 prohibit an employer from discharging or discriminating
against an employee who has engaged in protected activities. Petitioners contend that
the ARB’s finding that their complaints were barred under the affirmative defense
1 Section 211(a), 42 U.S.C. § 5851(a), provides in relevant part:
(1) No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee . . .
(A) notified his employer of an alleged violation of this Act or the Atomic Energy Act of 1954 (42 U.S.C. § 2011 et seq.);
***
2 provision of Section 211(g)2 is not supported by substantial evidence. We disagree
and affirm.
Petitioners were control room operators at FPC’s Crystal River 3 nuclear power
plant (the plant). They were concerned that maintaining hydrogen pressure in
accordance with FPC’s mandated procedure (designated Curve 83) was unsafe and
notified the engineering department. They were not satisfied with the engineering
department’s assurance that maintaining pressure according to Curve 8 was “accurate
and reasonably conservative.” Petitioners felt that their safety concerns had not been
adequately addressed and that they needed to respond. In order to obtain data that
would show whether their concerns about Curve 8 were valid, petitioners decided to
conduct their own tests. They contend that they believed the tests complied with
existing procedures and were within their authority to perform. Petitioners claim that,
as licensed nuclear operators, they owed a duty to the public to verify a critical safety
issue that they believed was being ignored by FPC.
2 Section 211(g), 42 U.S.C. § 5851(g), provides:
Subsection (a) of this section [prohibiting discrimination] shall not apply with respect to any employee who, acting without direction from his or her employer (or the employer’s agent), deliberately causes a violation of any requirement of this chapter or of the Atomic Energy Act of 1954, as amended [42 U.S.C. § 2011 et seq.]. 3 For further background and description as to the nuclear tests performed, refer to the background section of the ARB’s Final Decision and Order dated March 1, 1998.
3 The undisputed facts are that in September 1994, petitioners performed tests on the
plant’s nuclear reactor during two midnight shifts, while the nuclear reactor was
operating at full power. On the first night, September 4, their actions triggered an
alarm light for forty-three minutes. Petitioners ignored the alarm and continued.
When the September 4 data proved inconclusive, they tried again. On the second
night, September 5, petitioners told an auxiliary building operator to “dress out” in
protective clothing, to allow him to vent hydrogen quickly should an accident occur.
This time the alarm light was triggered for thirty-five to thirty-seven minutes.
Following the September 5 test, petitioners prepared a problem report. They
did not mention the September 4 test. In response to the problem report, FPC
transferred petitioners to positions other than as control room operators. The Nuclear
Regulatory Commission (NRC) instituted an investigation. When FPC subsequently
learned of the September 4 test, it discharged Weiss and Fields and transferred Stewart
out of operations with a written reprimand.
Thereafter petitioners filed this Section 211 discrimination action with the
DOL, alleging that FPC disciplined them, demoted Stewart, and discharged Fields and
Weiss because they were engaging in activities protected under the ERA. After an
evidentiary hearing, the DOL ALJ concluded that the undisputed facts provided
overwhelming evidence that petitioners had acted deliberately and without direction
4 from FPC management when they twice conducted unauthorized tests on the nuclear
reactor. He issued a recommended decision and order granting FPC’s motion for
summary decision. Petitioners appealed to the ARB. In its final decision and order,
the ARB accepted the recommendation of the ALJ, concluding that FPC’s decision
to discharge and demote petitioners was based upon petitioners’ “reckless disregard”
as to whether a nuclear safety violation would occur and that they “deliberately caused
a violation” of nuclear safety regulations. Finding no genuine issue of material fact,
the ARB determined that FPC had established a valid Section 211(g) affirmative
defense as a matter of law and dismissed the complaints. Petitioners now complain
that the ARB erred in finding that they had acted without direction from FPC
deliberately to cause violations of NRC requirements.
In reviewing cases arising under the ERA, we are required to conform to the
standard of review set forth in the Administrative Procedure Act. 42 U.S.C. §
5851(c)(1). Thus the ARB decision will be overturned only if it “is unsupported by
substantial evidence or if it is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A), (E); Kahn v. Secretary
of Labor, 64 F.3d 271, 276 (7th Cir. 1995)(citing Lockert v. U.S. Dep’t of Labor, 867
F.2d 513, 516-17 (9th Cir. 1989)); see also Stone & Webster Engineering Corp. v.
Herman, 115 F.3d 1568, 1571 (11th Cir. 1997). The substantial evidence test is no
5 more than a recitation of the application of the ‘arbitrary and capricious’ standard to
factual findings. Atlanta Gas Light Co. v. FERC, 140 F.3d 1392, 1397 (11th Cir.
1998). Appropriate deference must be given to statutory interpretation by the ARB.
See Stone & Webster, 115 F.3d at 1571(citing Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984); Bechtel Construction Co. v.
Sec. of Labor, 50 F.3d 926, 931 (11th Cir. 1995)). The reviewing court does not re-
weigh the evidence or substitute its judgment for that of the ARB, but reviews the
entire record to determine if the decision reached is reasonable and supported by
substantial evidence. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991).
It is clear from the record that, regardless of their motives, good or bad,
petitioners moved knowingly and dangerously beyond their authority when, on their
own, and fully aware that their employer would not approve, they conducted
experiments inherently fraught with danger. The tests conducted during the midnight
shifts were expected by petitioners to produce conditions sufficiently perilous to set
off alarms. While it is possible that they meant, by their actions, to demonstrate that
prescribed FPC policy was dangerous, it is clear that petitioners’ unauthorized frolics
were just what Congress envisioned when it made the whistleblower statute
inapplicable to “any employee who, acting without direction from his or her employer
(or the employer’s agent), deliberately causes a violation of any requirement of this
chapter . . . .” Section 211(g), 42 U.S.C. § 5851(g).
6 Giving appropriate deference to the ARB’s interpretation of the statute, Stone
& Webster, 115 F.3d at 1571, we conclude that its determination was reasonable and
supported by substantial evidence contained in the record. Cornelius, 936 F.2d at
1145. We affirm the decision of the ARB.
AFFIRMED.