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Bobreski v. U.S. Environmental Protection Agency

September 30, 2003


Document Nos. 7, 11




This whistleblower case arises out of the exposé of conditions at the Blue Plains wastewater treatment facility ("Blue Plains") run by the District of Columbia Water and Sewer Authority ("WASA"). The plaintiff, a former Blue Plains employee, contacted the Washington Post ("the Post") to report what he viewed as alarming deficiencies with Blue Plains' chlorine alarm system. The resulting front-page article prompted a visit from an Environmental Protection Agency ("EPA") inspector. The plaintiff, however, lost his job. He filed for federal whistleblower protection and won. After WASA appealed the matter to an administrative law judge ("ALJ"), both parties requested the inspector's testimony, and the ALJ issued a subpoena for the testimony. Citing to its regulations, EPA refused to permit the inspector to testify. The plaintiff now brings this action alleging that EPA's refusal violates the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. Because the court lacks subject-matter jurisdiction over the plaintiff's subpoena claim, the court grants the defendant's motion to dismiss. As for EPA's denial of the plaintiff's request for testimony, the court determines that the denial was not arbitrary or capricious, and accordingly grants the defendant's alternative motion for summary judgment and denies the plaintiff's motion for summary judgment.


A. Factual Background

In 1999, while working as a technician at Blue Plains, the plaintiff observed what he believed were serious deficiencies in the use and storage of liquid chlorine at Blue Plains. Compl. ¶ 6; Pl.'s Mot. for Summ. J. ("Pl.'s Mot.") at 2. While testing the chlorine alarm system, the plaintiff discovered rusted and corroded pipe structures as well as sensors and alarms that appeared to have been intentionally disconnected. Pl.'s Mot. at 2-3. The plaintiff raised his concerns with WASA management. Id. at 3. After WASA failed to take"meaningful corrective action," the plaintiff took his concerns to the Post, which began an investigation. Id. On November 5, 1999, the Post published a front-page article detailing the alleged failures at Blue Plains. Def.'s Statement of Undisputed Material Facts ("Def.'s Statement") ¶ 2. Four days later, in response to the article, EPA sent an inspector to Blue Plains. Id. ¶¶ 1-2; Pl.'s Statement of Undisputed Material Facts ("Pl.'s Statement") ¶ 9.

In late October 1999, a few days before the Post published its article, WASA terminated the plaintiff's employment. Pl.'s Mot. at 3. Alleging that WASA fired him in retaliation for reporting the failures of the sensor system, the plaintiff filed a complaint with the Department of Labor ("the Department") pursuant to the whistleblower-protection provisions of six environmental statutes: the Clean Air Act ("CAA"), 42 U.S.C. § 7622; the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300j-9; the Solid Waste Disposal Act ("SWDA"), 42 U.S.C. § 6971; the Water Pollution Control Act ("WPCA"), 33 U.S.C. § 1367; the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9610; and the Toxic Substances Control Act ("TSCA"), 15 U.S.C. § 2622.*fn1 Id. at 3-4. In March 2001, after conducting an investigation, the Department's Occupational Safety and Health Administration ("OSHA") determined that the plaintiff's termination violated all six statutes, directed WASA to reinstate the plaintiff and awarded him damages. Id. at 4.

WASA appealed OSHA's determination, and the Department assigned the appeal to an ALJ. Id. Prior to the first hearing, both the plaintiff and WASA asked EPA to produce the inspector as a witness for the hearing. Def.'s Statement ¶ 3; Pl.'s Statement ¶¶ 1, 3. In October 2001, WASA sent EPA a written request, following up a month later with a subpoena issued by another ALJ. Def.'s Statement ¶¶ 3, 5-6; Def.'s Mot. Attach. A. EPA responded to the request and subpoena by issuing a determination indicating that pursuant to EPA regulations, the inspector would not be available to testify. Def.'s Statement ¶¶ 7-8; Def.'s Mot. Attach. B. Instead, EPA asked the inspector to draft an affidavit. Def.'s Statement ¶ 9. The inspector agreed, and affirmed his Blue Plains inspection activities and findings in a notarized affidavit. Id.; Def.'s Mot. Attach. C.

In response to the affidavit, the plaintiff's counsel contacted EPA in December 2001 to express concerns about the affidavit and its contents. Def.'s Statement ¶ 10. A conference call ensued between the plaintiff's counsel, an assistant to the plaintiff's counsel, EPA and the inspector.*fn2 Id. ¶ 11. Subsequently, the plaintiff wrote to EPA to request that the call, as memorialized by the plaintiff's counsel's assistant, be reduced to an affidavit for the inspector's signature.*fn3 Id. ¶¶ 12-13 & Attach. E. At the same time, in a separate letter, the plaintiff sent EPA a subpoena issued by the ALJ presiding over the administrative hearings. Id. ¶¶ 14-15; Def.'s Mot. Attach. D; Pl.'s Statement ¶ 4. EPA responded to the subpoena by issuing a second determination, again indicating that pursuant to EPA regulations, the inspector would not be available to testify. Def.'s Statement ¶ 16; Def.'s Mot. Attach. F.

In January 2002, the plaintiff filed a motion to order testimony with the ALJ. Def.'s Statement ¶ 17; Pl.'s Mot. Attach. 4 ("ALJ Order"). In March 2002, the ALJ issued an order denying the plaintiff's motion. Id. In her order, the ALJ first stated that the inspector had relevant information regarding EPA requirements for facilities such as Blue Plains, the condition of Blue Plains at the time of his inspection, and witness credibility. ALJ Order at 2. The ALJ then concluded, based on a 2000 Administrative Review Board ("ARB") decision and Department regulations, that she had inherent authority to issue subpoenas. Id. at 2-3 (citing 29 C.F.R. § 18.24(d); Childers v. Carolina Power & Light Co., No. 97-ERA-32 (A.R.B. Dec. 29, 2000)). She found, however, that her authority did not extend to enforcement of subpoenas. Id. at 3. Noting that the issue as to whether EPA could bar its employee from testifying should be directed to this court, she denied the plaintiff's motion. Id.

B. Procedural History

On April 17, 2002, the plaintiff filed a complaint in this court, alleging that EPA violated the APA by (1) denying the plaintiff's request for the inspector to testify and (2) failing to comply with the ALJ's subpoena directing the inspector to testify.*fn4 Compl. ¶¶ 30-33. The plaintiff seeks injunctive and declaratory relief directing EPA to produce the inspector as a witness. Id. at 9. On June 17, 2002, EPA filed an answer. The plaintiff filed a motion for summary judgment on July 30, 2002. In turn, the defendant filed a motion to dismiss or, in the alternative, for summary judgment on September 6, 2002. The court now turns to the parties' motions.


A. Legal Standard for a Motion to Dismiss

Federal courts are courts of limited jurisdiction and the law presumes that"a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938). Because"subject-matter jurisdiction is an 'Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea, 456 U.S. 694, 702 (1982)). On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Rasul v. Bush, 215 F. Supp. 2d 55, 61 (D.D.C. 2002) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936)). The court may dismiss a complaint for lack of subject-matter jurisdiction ...

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