Peck v. Nuclear Regulatory Commission (agency decision, December 19, 2019)

Plain-English summary

Michael Peck alleged that the Nuclear Regulatory Commission retaliated against him by not selecting him for a Senior Resident Inspector position. The ALJ dismissed the Energy Reorganization Act complaint because the United States had not waived sovereign immunity for that claim. An en banc Board majority agreed that naming the NRC as an “employer” did not unequivocally make it a “person” subject to the statute's remedies. The Board affirmed the dismissal and denied Peck's complaint. One Board member dissented, reasoning that Congress intended the NRC to be subject to the complaint and remedy provisions when it added the agency as a covered employer.

Decision snapshot

• Cited authorities: 42 U.S.C. § 5851; 29 C.F.R. § 24.110
• Outcome: The Board affirmed the ALJ's sovereign-immunity dismissal and denied the complaint.
• Key point: A federal agency's inclusion as an employer did not unequivocally waive sovereign immunity when the ERA's remedy provisions apply to a “person.”

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:


  MICHAEL S. PECK,                                 ARB CASE NO.   2017-0062

                  COMPLAINANT,                     ALJ CASE NO.   2017-ERA-00005
         v.
                                                   DATE: December 19, 2019
  NUCLEAR REGULATORY
  COMMISSION,

                  RESPONDENT.


  Appearances:

  For the Complainant:
        Billie Pirner Garde, Esq., Clifford & Garde, LLP, Washington,
        District of Columbia

  For the Respondent:
        C. Jack McKimm, Esq., U.S. Nuclear Regulatory Commission,
        Rockville, Maryland

  Before: William T. Barto, Chief Administrative Appeals Judge; James A.
  Haynes, Thomas H. Burrell, and Heather C. Leslie, Administrative Appeals
  Judges


                         FINAL DECISION AND ORDER

        HAYNES, Administrative Appeals Judge. This case arises under the
  whistleblower protection provision of the Energy Reorganization Act of 1974 (ERA),
  as amended, 42 U.S.C. § 5851 (2005), and as implemented by regulations codified at
  29 C.F.R. Part 24 (2018). On February 16, 2017, Dr. Michael S. Peck filed a


  complaint with the Occupational Safety and Health Administration (OSHA)
  alleging that his employer, the U.S. Nuclear Regulatory Commission (NRC or
  Commission), violated the ERA when it failed to select him for a vacant Senior
  Resident Inspector position at the Callaway Nuclear Plant. OSHA denied the
  complaint and Peck requested a hearing before an Administrative Law Judge (ALJ).

         Prior to any hearing, NRC filed a Motion to Dismiss Peck’s complaint because
  “under longstanding principles of sovereign immunity and precedential case law of
  the Department of Labor Administrative Review Board, the Office of Administrative
  Law Judges lacks subject-matter jurisdiction over this action brought under [the
  ERA].” 1 On July 13, 2017, the ALJ issued an Order in which he concluded that he
  did not have jurisdiction in this case because although “[t]he NRC is an
  instrumentality of the U.S. Government which through the laws of the United
  States permits certain actions under a waiver of sovereign immunity … [t]he United
  States has not waived sovereign immunity for ERA whistleblower actions.” 2 Peck
  appealed the Order to the Administrative Review Board (ARB or Board). Due to the
  significance of the issue to be considered, the Chief Administrative Appeals Judge
  designated this case for en banc consideration. For the following reasons we affirm
  the ALJ.

                         JURISDICTION AND STANDARD OF REVIEW

         Congress has authorized the Secretary of Labor to issue final agency
  decisions with respect to claims of discrimination and retaliation filed under the
  ERA. 3 The Secretary has delegated that authority to the Board. 4 The Board reviews
  an ALJ’s conclusions of law, including whether to deny a complaint on a motion to
  dismiss, de novo. 5


  1       Respondent’s Motion to Dismiss at 1.
  2       Order, Summary Decision as to Jurisdiction, Claim Dismissed (hereinafter, “Order”)
  at 4.
  3       42 U.S.C. § 5851.
  4      Secretary’s Order No. 01-2019 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 84 Fed. Reg. 13,072 (Apr. 3, 2019); see
  29 C.F.R. § 24.110.
  5     Saporito v. Progress Energy Serv. Co., ARB No. 2011-040, ALJ No. 2011-ERA-00006
  (ARB Nov. 17, 2011).


                                          DISCUSSION

        Peck raises the following issues on appeal: (1) Whether the language of the
  ERA clearly and unambiguously waives sovereign immunity for the Commission;
  and (2) If the ARB determines that the statutory language is ambiguous, “is there
  evidence to demonstrate Congress intended to waive sovereign immunity?” 6 The
  NRC maintains its argument that the United States has not waived sovereign
  immunity for ERA whistleblower claims. 7 We agree with the NRC and will deny
  Peck’s complaint because the whistleblower protection provision of the ERA, as
  amended, does not contain an unequivocal expression of an intent to waive
  sovereign immunity.

         1. Statutory Background.

        We begin with a review of the text of the relevant laws. Congress first
  regulated the creation and use of nuclear energy in the Atomic Energy Act (AEA) of
  1946, which established the Atomic Energy Commission (AEC). It was amended by
  the AEA of 1954, which allowed private construction, ownership, and operation of
  commercial nuclear power reactors under AEC supervision. The provisions of the
  AEA of 1954 were codified in Chapter 23 of Title 42 of the United States Code.

         Congress passed the ERA in 1974 as part of its continuing effort to regulate
  nuclear energy. The ERA’s provisions were placed in Chapter 73, a new chapter of
  Title 42 of the United States Code. The ERA abolished the AEC and created two
  new entities to take its place – the NRC and the Energy Research and Development
  Administration. In adopting the ERA, Congress did not repeal the provisions of
  Chapter 23.

         In 1978, Congress amended the ERA to prohibit employers from
  discriminating against employees who report violations of the ERA or the AEA or
  who participate in any other action to carry out the purposes of those acts. It also
  established processes and remedies to redress such discrimination.



  6      Initial Brief of Complainant in Support of Petition for Review (Initial Brief) at 1.
  7     Brief of Respondent Nuclear Regulatory Commission in Opposition to Petition for
  Review at 7-10.


         Finally, in 2005, Congress added the NRC to the definition of “employer”
  under the ERA but failed to identify the NRC or any other governmental entities as
  a “person” from whom relief may be sought. The anti-retaliation provision of the
  ERA which prohibits certain employer conduct was codified at 42 U.S.C.
  § 5851(a)(1) and provides as follows:

                  (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 (or any
                  person acting pursuant to a request of the employee) –

                     (A) notified his employer of an alleged violation of
                     this chapter or the Atomic Energy Act of 1954 (42
                     U.S.C. § 2011 et seq.);

                     (B) refused to engage in any practice made
                     unlawful by this chapter or the Atomic Energy Act
                     of 1954 [42 U.S.C. § 2011 et seq.], if the employee
                     has identified the alleged illegality to the employer;

                     (C) testified before Congress or at any Federal or
                     State proceeding regarding any provision (or
                     proposed provision) of this chapter or the Atomic
                     Energy Act of 1954 [42 U.S.C. § 2011 et seq.];

                     (D) commenced, caused to be commenced, or is
                     about to commence or cause to be commenced a
                     proceeding under this chapter or the Atomic
                     Energy Act of 1954, as amended [42 U.S.C. § 2011
                     et seq.], or a proceeding for the administration or
                     enforcement of any requirement imposed under
                     this chapter or the Atomic Energy Act of 1954, as
                     amended;

                     (E) testified or is about to testify in any such
                     proceeding or;

                     (F) assisted or participated or is about to assist or
                     participate in any manner in such a proceeding or
                     in any other manner in such a proceeding or in any
                     other action to carry out the purposes of this


                        chapter or the Atomic Energy Act of 1954, as
                        amended [42 U.S.C. § 2011 et seq.]. 8

  For purposes of § 5851, the term “employer” includes specified entities identified
  below:

                        (A) a licensee of the Commission or of an agreement
                        State under section 274 of the Atomic Energy Act of
                        1954 (42 U.S.C. § 2021);

                        (B) an applicant for a license from the Commission
                        or such an agreement State;

                        (C) a contractor or subcontractor of such a licensee
                        or applicant;

                        (D) a contractor or subcontractor of the Department
                        of Energy that is indemnified by the Department
                        under section 170 d. of the Atomic Energy Act of
                        1954 (42 U.S.C. 2210(d)), but such term shall not
                        include any contractor or subcontractor covered by
                        Executive Order No. 12344;

                        (E) a contractor or subcontractor of the
                        Commission;

                        (F) the Commission; and

                        (G) the Department of Energy. 9

         We now shift our analysis. The remedy provision of the ERA establishes
  specific processes for filing, investigating, and adjudicating employee complaints:

                  (b)      Complaint, filing and notification

                  (1) Any employee who believes that he has been
                  discharged or otherwise discriminated against by any
                  person in violation of subsection (a) of this section may,


  8      42 U.S.C. § 5851(a)(1) (emphasis added).
  9      Id. § 5851(a)(2).


                  within 180 days after such violation occurs, file (or
                  have any person file on his behalf) a complaint with
                  the Secretary of Labor (in this section referred to as
                  the “Secretary”) alleging such discharge or
                  discrimination. Upon receipt of such a complaint, the
                  Secretary shall notify the person named in the
                  complaint of the filing of the complaint, the
                  Commission, and the Department of Energy.

                  (2)(A) Upon receipt of a complaint filed under
                  paragraph (1), the Secretary shall conduct an
                  investigation of the violation alleged in the complaint.
                  Within thirty days of the receipt of such complaint, the
                  Secretary shall complete such investigation and shall
                  notify in writing the complainant (and any person
                  acting in his behalf) and the person alleged to have
                  committed such violation of the results of the
                  investigation conducted pursuant to this
                  subparagraph. Within ninety days of the receipt of
                  such complaint the Secretary shall, unless the
                  proceeding on the complaint is terminated by the
                  Secretary on the basis of a settlement entered into by
                  the Secretary and the person alleged to have
                  committed such violation, issue an order either
                  providing the relief prescribed by subparagraph (B) or
                  denying the complaint. An order of the Secretary shall
                  be made on the record after notice and opportunity for
                  public hearing. Upon the conclusion of such hearing
                  and the issuance of a recommended decision that the
                  complaint has merit, the Secretary shall issue a
                  preliminary order providing the relief prescribed in
                  subparagraph (B), but may not order compensatory
                  damages pending a final order. The Secretary may not
                  enter into a settlement terminating a proceeding on a
                  complaint without the participation and consent of the
                  complainant. 10

  We reach the end of our statutory review with the passage below concerning the
  application of penalties under the ERA for violations of the Act. If the Secretary (or


  10     Id. §§ 5851(b)(1) and (b)(2)(A) (emphasis added).


  his delegates) concludes that a violation has occurred, remedies may be ordered
  against the person who committed the violation:

                  (B)     If, in response to a complaint . . . the Secretary
                  determines that a violation of subsection (a) . . . has
                  occurred, the Secretary shall order the person who
                  committed the violation to (i) take affirmative action to
                  abate the violation, and (ii) reinstate the complainant
                  to his former position together with . . . compensation
                  . . . and the Secretary may order such person to provide
                  compensatory damages to the complainant. If an order
                  is issued under this paragraph, the Secretary, at the
                  request of the complainant shall assess against the
                  person against whom the order is issued a sum equal
                  to the aggregate amount of all costs and expenses
                  (including attorneys’ and expert witness fees)
                  reasonably incurred, as determined by the Secretary,
                  by the complainant for, or in connection with, the
                  bringing of the complaint upon which the order was
                  issued. 11

         In sum, the text of the ERA presents a semantic challenge to the reader: the
  anti-retaliation provision of the Act constrains certain “employer” conduct toward
  employees, while the remedy provision allows an employee to obtain relief from
  discriminatory conduct by “any person.” And while “employer” is defined by statute
  to include the U.S. Department of Labor and the NRC, there is no similar definition
  or any statutory cross-reference for the word “person” as used in the remedy
  provision. The relationship between the words “employer” and “person” is, at best,
  ambiguous 12 and requires the use of traditional interpretive tools to clarify the
  relationship, if any, between the two words and the intent of the legislature in using
  dissimilar words in related parts of the ERA. As will be seen, this analysis will be
  critical to our resolution of the question as to whether Congress has waived the
  sovereign immunity of the federal government in connection with whistleblower
  complaints under the ERA.


  11     Id. § 5851(b)(2)(B) (emphasis added).
  12     For example, are the terms synonymous, as argued by Respondent and our
  dissenting colleague, or does the use of different words in related parts of a statute evince
  different meanings for each?


         2. Sovereign Immunity.

         Sovereign immunity shields the federal government and its agencies from
  suit absent a waiver by the government. 13 The extent of the federal government’s
  waiver of sovereign immunity and the types of damages allowable are authorized
  and defined by the language of the waiver, and that language is to be narrowly
  construed. 14 Moreover, the waiver must be established by the statute itself. 15
  Waivers of sovereign immunity must be “unequivocally expressed” 16 and are strictly
  construed in favor of the United States. 17 The immunity applies in administrative
  adjudications as well as adjudications in the federal courts. 18

        To determine if sovereign immunity has been waived, we must focus on the
  statutory text that relates to liability. 19 And for Peck’s case to proceed, we must


  13     Dept. of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999).
  14      See, e.g., Lane v. Pena, 518 U.S. 187, 192, 200 (1996) (citing United States v.
  Williams, 514 U.S. 527, 531 (1995) (“Although neither of these conceivable readings of
  § 1003(a)(2) [of the Rehabilitation Act of 1973] is entirely satisfactory, their existence points
  up a fact fatal to Lane’s argument: Section 1003(a) is not so free from ambiguity that we
  can comfortably conclude, based thereon, that Congress intended to subject the Federal
  Government to awards of monetary damages for violations of § 504(a) of the Act. Given the
  care with which Congress responded to our decision in Atascadero by crafting an
  unambiguous waiver of the States’ Eleventh Amendment immunity in § 1003, it would be
  ironic indeed to conclude that that same provision “unequivocally” establishes a waiver of
  the Federal Government’s sovereign immunity against monetary damages awards by
  means of an admittedly ambiguous reference to “public ... entit[ies]” in the remedies
  provision attached to the unambiguous waiver of the States’ sovereign immunity.”).
  15      Id. (quoting United States v. Nordic Vill., Inc., 503 U.S. 30, 37 (1992) (“A statute’s
  legislative history cannot supply a waiver that does not appear clearly in any statutory
  text: ‘the “unequivocal expression” of elimination of sovereign immunity that we insist
  upon is an expression in statutory text.’”).
  16     Nordic Vill., Inc., 503 U.S. at 33-34; United States v. Mitchell, 445 U.S. 535, 538
  (1980) (citing United States v. King, 395 U. S. 1 (1969)).
  17     Ardestani v. Immigration and Naturalization Serv., 502 U.S. 129, 137 (1991).
  18     Fed. Mar. Comm’n v. South Carolina State Ports Auth., 535 U.S. 743, 761 (2002)
  19     See, e.g., Bath v. U.S. Nuclear Regulatory Comm’n, ARB No. 2002-0041, ALJ No.
  2001-ERA-00041 (ARB Sept. 29, 2003), slip op. at 4, citing Pastor v. Dep’t of Veterans
  Affairs, ARB No. 99-071, ALJ No. 1999-ERA-011 (ARB May 30, 2003), slip op. at 6 (“To
  sustain a claim that the Government is liable for awards of monetary damages, the waiver
  of sovereign immunity must extend unambiguously to such monetary claims.”). Peck


  determine whether Congress has waived the federal government’s (and specifically,
  the NRC’s) sovereign immunity under the ERA. As noted previously, the anti-
  retaliation provision of the ERA prohibits any “employer,” as defined therein, from
  retaliating against any employee who engages in any of the protected activities set
  forth therein. But the remedy provision allows for remedies only against “persons,”
  a term of art that generally excludes the federal government. 20 The Supreme Court
  has recently affirmed the “longstanding interpretive presumption” that the word
  “person” excludes federal agencies. 21

         We note that “person” is defined in the Atomic Energy Act (AEA) to include
  any “Government agency,” and the argument can be made that the definition should
  extend to the ERA. However, the AEA definition of “person” is, by the terms of the
  applicable definitions section, expressly limited to that chapter of the AEA. 22 The
  limiting language noted in the AEA means that in this case the term “person” must
  be construed as it is used in the ERA and as part of a discrete legal regime, distinct
  from the AEA. 23 But even if we were to conclude that AEA definition of “person”

  asserts that he “seeks, essentially, equitable damages of transfer into the position he
  applied for,” but he also seeks monetary damages in the form of “wages, bonuses and other
  job-related benefits associated with the position he would have been eligible to receive” if he
  had been selected for the vacant position. See Initial Brief at 4.
  20      E.g., 1 U.S.C. § 1 (omitting reference to governmental entities in omnibus definition
  of “person”).
  21     Return Mail, Inc. v. U.S. Postal Service, 587 U.S. ___, 139 S.Ct. 1853, 1862 (2019)
  (“The Dictionary Act has since 1947 provided the definition of ‘person’ that courts use ‘[i]n
  determining the meaning of any Act of Congress, unless the context indicates otherwise.’ 1
  U.S.C. § 1 … The Act provides that the word “‘person’ ... include[s] corporations, companies,
  associations, firms, partnerships, societies, and joint stock companies, as well as
  individuals.” § 1. Notably absent from the list of ‘person[s]’ is the Federal Government.”).
  22     42 U.S.C. § 2014(s) (“The intent of Congress in the definitions as given in this
  section should be construed from the words or phrases used in the definitions. As used in
  this chapter ... (s) The term “person” means (1) any individual, corporation, partnership,
  firm, association, trust, estate, public or private institution, group, Government agency
  other than the Commission, any State or any political subdivision of, or any political entity
  within a State, any foreign government or nation or any political subdivision of any such
  government or nation, or other entity; and (2) any legal successor, representative, agent, or
  agency of the foregoing.”).
  23     See Pastor, slip op. at 19 (“Although Congress chose to establish new agencies
  through the ERA and transfer to them functions given to other bodies by the AEA, it did
  not transfer or otherwise incorporate the definitions of the AEA. This is particularly notable
  because Congress did specifically incorporate into the ERA (and Chapter 73) certain other


  raises an inference as to Congressional intent concerning the ERA, that inference
  merely creates a debatable point, at most, and falls short of the unequivocal
  expression the Supreme Court requires to establish a waiver of federal sovereign
  immunity. 24

         In Mull v. Salisbury Veterans Admin. Med. Ctr., 25 the Board rejected the
  argument that the AEA definition of person applied to the ERA. 26 The board also
  concluded that it could not assume that because a respondent is an “employer”
  under the anti-retaliation provision, it is also a “person” under the remedy
  provision. 27 The Board compared the whistleblower protection provision of the ERA
  to the one contained in the Clean Air Act, which clearly indicates Congress’ intent
  to waive the federal government’s sovereign immunity:




  references … Congress has continued to treat the AEA and the ERA (and Chapters 23 and
  73 thereby) as separate, by selectively amending each Act. The fact that Congress chose to
  adopt the whistleblower provision of § 5851 as an amendment to the ERA, which contains
  no definition of “person,” rather than as an amendment to the AEA, which contains a
  definition, cannot be ignored.”).
  24      It is equally logical and no less speculative to infer that the language of the AEA is
  different from that of the ERA in its definition of “person” as applied to federal agencies
  because Congress intended to convey a different meaning. The AEA language may be read
  to show that Congress knew how to waive sovereign immunity for the AEA and
  intentionally declined to do so in the ERA. There is no explicit justification for this, not
  illogical, interpretation and we decline to adopt it in preference to other equally unjustified
  theories.
  25     ARB No. 2009-0107, ALJ No. 2008-ERA-00008 (ARB Aug. 31, 2011).
  26     Mull, slip op. at 10 (“The Assistant Secretary asks that we look outside of the ERA’s
  language, to the AEA’s definition of “person” to find that the federal government has
  waived its immunity under the ERA. However, we can find no language in the ERA that
  expressly requires or directs us to look outside of the act. While the Supreme Court has
  “never required that Congress make its clear statement in a single section or in statutory
  provisions enacted at the same time,” Kimel v. Florida, 528 U.S. 62, 76 (2000), the Court
  has required that Congress make a clear statement in the statutory text, even if simply by
  including in the statute, language that incorporates provisions from other statutes. Lane,
  518 U.S. 187, 192 (1996); Kimel, 528 U.S. at 74-77.”).
  27     Id., slip op. at 9 (citing Pastor, slip op at 17-18) (“Based on the principles of statutory
  construction ‘that to the extent possible all Congressional provisions are to be given
  meaning, and that when Congress uses two different words in close proximity, the use of
  different words indicates a difference in meaning.’”).


                  The lack of clarity in 42 U.S.C.A. § 5851’s provision that
                  an employee can bring a complaint against “any person,”
                  with “person” being undefined is underscored by the
                  precision with which Congress waived the Federal
                  Government’s sovereign immunity under 42 U.S.C.A.
                  § 7622 (Thomson/West 2003) of the Clean Air Act, which
                  prohibits discrimination on the basis of protected activity
                  under the Clean Air Act in employment decisions by the
                  Federal Government. In 42 U.S.C. § 7622, Congress
                  allows an employee to file a CAA complaint with OSHA
                  against “any person in violation of” the CAA
                  whistleblower provisions. In 42 U.S.C. § 7602(e), “person”
                  is defined to include “any agency, department, or
                  instrumentality of the United States,” thereby
                  unequivocally expressing the intent to waive the federal
                  government’s sovereign immunity. In contrast, 42
                  U.S.C.A. § 5851’s lack of any language including the
                  federal government as an entity against which complaints
                  can be filed or otherwise waiving its sovereign immunity,
                  tends to suggest that Congress did not intend the federal
                  government’s sovereign immunity to be waived. 28

         Our dissenting colleague nevertheless raises a number of plausible
  arguments concerning the intent of Congress in this regard, focusing primarily upon
  the 2005 amendment to the ERA that subjected the NRC to the Act’s anti-
  retaliation provisions as circumstantial evidence of a further intent to allow suit
  against the NRC if it violated those provisions. 29 But more than plausibility is
  required by the law. 30 As we have previously noted, “[w]hen one reading of a
  statutory text could plausibly support a finding of waiver, but another reading that

  28     Id., slip op. at 10.
  29     On this point we disagree. The addition of the NRC as a covered employer under the
  ERA should be read as just that. To give effect to that addition it is not necessary to further
  assume that Congress made a tacit addition to the definition of person. Likewise, an
  addition to the list of employers under the Act does not necessitate an assumption that
  Congress intended to waive sovereign immunity. Our judgment on this point is strongly
  influenced by our recognition that Congress retains the power to legislate on the question
  before us and to unequivocally resolve the matter. We have no warrant to substitute our
  interpretive efforts for the legislative authority of Congress.
  30    When there are multiple “plausible” interpretations of a statute, “a reading imposing
  monetary liability on the Government is not ‘unambiguous’ and therefore should not be
  adopted.” United States v. Nordic Village, 503 U.S. 30, 37 (1992).


  is incompatible with waiver is also plausible, the latter must prevail. That is
  because the very presence of ambiguity precludes a finding of waiver.” 31 The
  ambiguity in the statutory text at issue here, considered in favor of the sovereign,
  compels us to conclude that the ERA does not contain an unequivocal expression of
  legislative intent to waive immunity. 32

                                          CONCLUSION

         We hold that the whistleblower protection provision of the ERA does not
  contain an unequivocal expression of intent to waive sovereign immunity, and, as
  such, the United States has not waived sovereign immunity for ERA whistleblower
  claims. We therefore conclude that the ALJ’s decision was correct in law and should
  be AFFIRMED. Accordingly, we DENY Peck’s complaint.

         SO ORDERED.




  31     Pastor, slip op. at 17 (citing Dep’t of Energy v. Ohio, 503 U.S. 607, 627). Congress did
  not add the NRC to the definition of “employer” until 2005. One can argue that, in light of
  Pastor, Congress would have also defined “person” to include the federal government if it
  intended to waive immunity. See, e.g., Mull, slip op. at 11, fn 5 (citing Lorillard v. Pons, 434
  U.S. 575, 580 (1978)(“Congress is presumed to be aware of an administrative or judicial
  interpretation of a statute and to adopt that interpretation when it re-enacts a statute
  without change”)).
  32      At least two members of Congress consider the use of the term “person” in the ERA
  sufficiently vague that they proposed a bill on May 24, 2018, “[t]o amend the Energy
  Reorganization Act of 1974 to clarify whistleblower rights and protections, and for other
  purposes.” See S. 2968, 115th Cong. § 2 (2018). The amendment would have created a
  definition of the word “person” that would specifically identify the NRC as a person under
  the act. Id (“The term ‘person’ includes - (i) a person (as defined in Section 11 of the Atomic
  Energy Act of 1954 (42 U.S.C. 2014)); (ii) the Commission; and (iii) the Department of
  Energy.”). As of the date of this decision, no such legislation has been enacted.




         BURRELL, Administrative Appeals Judge, dissenting:

         Respectfully, I dissent from the majority’s holding. I would hold that the ALJ
  erred in concluding that Congress did not waive the Nuclear Regulatory
  Commission’s (NRC) sovereign immunity in the 2005 amendments to Section 211 of
  the ERA of 1974, 42 U.S.C. § 5851.

                                      Discussion

     1. The Supreme Court’s sovereign immunity standard

          The Supreme Court has stated on many occasions that a waiver of sovereign
  immunity must be “unequivocally expressed” in statutory text. See, e.g., Lane v.
  Peña, 518 U.S. 187, 192 (1996); United States v. Nordic Village, Inc., 503 U.S. 30, 33
  (1992); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990). Waivers of
  immunity, furthermore, “must be construed strictly in favor of the sovereign and
  not enlarged beyond what the language requires.” Dep’t of Energy v. Ohio, 503 U.S.
  607, 615 (1992) (citations omitted); see also Lane, 518 U.S. at 192 (noting that “a
  waiver of the Government’s sovereign immunity will be strictly construed, in terms
  of its scope, in favor of the sovereign”). Any ambiguities in the statutory language
  are to be construed in favor of immunity. United States v. Williams, 514 U.S. 527,
  531 (1995). The Supreme Court has held that where there are two plausible
  interpretations of a provision, with only one waiving sovereign immunity, such
  provision does not unequivocally indicate a waiver. See Nordic Village, 503 U.S. at
  36–37. Ambiguity exists if there is a plausible interpretation of the statute that
  would not authorize money damages against the Government. Id. at 34, 37.

     2. In 2005, Congress amended the ERA following the ARB’s decisions in
        Pastor and Bath

         In 2005, Congress amended the definition of “employer” in § 5851’s
  whistleblower provision to expressly include the NRC. This amendment follows two
  ARB decisions concluding that immunity was not waived for the respective federal
  entities, one involving the NRC.

        In Pastor v. Dep’t of Veterans Affairs, ARB No. 99-071, ALJ No. 1999-ERA-
  011 (ARB May 30, 2003), the ARB held that Pastor’s claim for monetary damages


  was barred by the federal government’s sovereign immunity. Pastor was employed
  by the Philadelphia Veterans Affairs Medical Center and terminated for what she
  alleged was retaliation in violation of § 5851 of the ERA. Pastor initially sought
  reinstatement and monetary damages but later dropped her effort for
  reinstatement. The Department of Veterans Affairs argued that while it was an
  “employer” as a licensee of the Commission, it was not a “person” subject to § 5851’s
  remedies section. The ARB agreed. Pastor, ARB No. 99-071, slip op. at 16.

         Shortly after Pastor, the ARB issued Bath v. U.S. Nuclear Regulatory Comm.,
  ARB No. 02-041, ALJ No. 2001-ERA-041 (ARB Sept. 29, 2003). Bath had filed a
  complaint against the NRC and five NRC employees for violating the whistleblower
  protection provisions of the ERA, § 5851. NRC sought to dismiss Bath’s complaint
  on the grounds that neither the NRC nor its employees are “employers” for purposes
  of § 5851, and the claim against the NRC is barred by sovereign immunity. Citing
  Pastor, the ARB held that Bath’s claim against the NRC and its employees must fail
  as Congress did not waive the federal government’s immunity in § 5851. The ARB
  wrote as follows:

                  The term “person” carries special significance in the context of
                  sovereign immunity because it is presumed to not include the
                  federal government. . . . Congress’ choice of the word “person” in
                  the liability section of § 5851(b) was strong evidence that
                  Congress did not intend to include federal agencies among the
                  employers subject to liability under § 5851(b).

  Bath, ARB No. 02-041, slip op. at 4 (citation omitted).

         Congress amended § 5851 in 2005 to add the NRC and the DOE to § 5851’s
  existing definition of “employer.” 33 As amended, § 5851 prohibits an employer, now

  33     Pub. L. 109-58, § 629, 119 Stat. 594 (2005). The Complainant’s Brief to the ARB and
  the Amicus Brief filed by the Government Accountability Project provide a persuasive
  history showing that the 2005 amendment to the ERA was intended to overturn the ARB’s
  holding in Bath that the NRC was not a covered entity. Cf. Lorillard v. Pons, 434 U.S. 575,
  580–81 (1978) (Congress is presumed to be aware of administrative and judicial
  interpretations of a statute when it amends or re-enacts a provision).
         The question as to whether the DOE can be a respondent also has a history. Teles v.
  U.S. Dep’t of Energy, No. 1994-ERA-022 (Sec’y Aug. 7, 1995) (observing that DOE was not
  provided for in the final definition of “employer” in the ERA’s whistleblower provision but


  expressly including the NRC and DOE, from retaliating against employees of the
  NRC or the DOE:

                  (a) Discrimination against employee
                  (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 (or any person acting pursuant to a
                  request of the employee)-- …[engages in protected activity].

                  (2) For purposes of this section, the term “employer” includes--
                  ...
                  (F) the Commission; and
                  (G) the Department of Energy.

  42 U.S.C. § 5851(a). Congress’s intent to waive the NRC’s immunity by including
  the NRC as an employer subject to the prohibition, to me, is unmistakable. The
  NRC asks the ARB to ignore the express text of the 2005 amendment by applying
  rules of statutory construction that are misplaced or distinguishable from the facts
  of this case.

       3. Section 5851 uses “employer” and “person” interchangeably

         Section 5851 defines “employer” but does not define “person.” 34 The crux of
  the question is whether “employer” and “person” are used interchangeably. The
  majority focuses solely on § 5851’s undefined use of “person” in the remedies section
  and contends that Congress did not expressly waive NRC’s immunity for “persons”
  even if it extended the definition of “employers” to include the NRC. I would hold



  may have been intended in draft language that did not make it to the final language
  adopted by Congress).
  34     The majority and dissent in Mull v. Salisbury Veterans Admin. Med. Clinic, ARB
  No. 09-107, ALJ No. 2008-ERA-008 (ARB Aug. 31, 2011), disagreed as to whether § 5851
  borrowed the Atomic Energy Act’s definition of person. The majority of the panel decided,
  over the amicus brief of the Occupational Safety and Health Administration, that Congress
  did not intend for § 5851’s whistleblower provision to incorporate AEA’s definition of
  “person,” codified at 42 U.S.C. § 2014(s).


  that Congress intended for “employer” to include “person” when it amended the
  definition of “employer” to include the NRC.

          The majority correctly identifies the long-standing presumption that a
  statute’s use of “person” does not generally include the federal government for
  purposes of a waiver of sovereign immunity. Majority Opinion, supra page 9, citing
  Return Mail Inc. v. U.S. Postal Serv., 139 S. Ct. 1853, 1861–62 and 1 U.S.C. § 1; see
  also Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 780–
  81 (2000). I do not take issue with the majority’s recitation of rules of construction
  or its analysis of relevant case law on ambiguity and waiver of immunity. I
  respectfully disagree with the application of that law to the matter at hand.

         The presumption that “person” does not include the United States is not a
  “hard and fast rule of exclusion.” United States v. Cooper, 312 U.S. 600, 604–05
  (1941). “[I]t may be disregarded only upon some affirmative showing of statutory
  intent to the contrary,” Stevens, 529 U.S. at 781. The 2005 amendments provide the
  necessary intent to rebut the presumption. Viewing § 5851’s whistleblower
  provision holistically, I would hold that Congress did use the terms “employer” and
  “person” interchangeably or more precisely that Congress’s use of the term
  “person”—undefined in § 5851—did not make the amended definition of “employer”
  to include the NRC equivocal so as to preclude a finding of waiver.

     a. Section 5851’s form links “employer” and “person” together in the prohibition,
        complaint, and remedies sections

         To properly give credit to the 2005 amendment adding the NRC as an
  employer for purposes of waiver, I examine the construction of § 5851’s sections as
  they interrelate to each other and explore § 5851’s origin for the connection between
  “employer” and “person.”

        Section 5851(a), the prohibition section, provides that “[n]o 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 (or any person acting pursuant to a request of the employee) . . .
  [engages in protected activity].” The 2005 amendments include “the Commission”
  and the “Department of Energy” as employers.




            Section 5851’s “complaint” and “remedies” sections link “employee” to
  “person” in the language “[a]ny employee who believes that he has been discharged
  or otherwise discriminated against by any person in violation of subsection (a) may, .
  . . file . . . a complaint with the Secretary of Labor . . . .” 35 If the Secretary finds a
  violation, the Secretary shall “order the person who committed such violation to (i)
  take affirmative action to abate the violation, and (ii) reinstate the complainant to
  his former position together with the compensation (including back pay), terms,
  conditions, and privileges of his employment, and the Secretary may order such
  person to provide compensatory damages to the complainant.” 36

        Section 5851 uses “employer” in the prohibition section and “person” in the
  remedies and complaint sections. The federal reporters are full of references to a
  common rule of construction that “‘where Congress includes particular language in
  one section of a statute but omits it in another ..., it is generally presumed that
  Congress acts intentionally and purposely in the disparate inclusion or exclusion.’”
  Russello v. United States, 464 U.S. 16, 23 (1983) (citation omitted).



  35     42 U.S.C. § 5851(b)(1) (emphasis added):
                  (b)(1) Any employee who believes that he has been discharged or
                  otherwise discriminated against by any person in violation of
                  subsection (a) may, within 180 days after such violation occurs, file (or
                  have any person file on his behalf) a complaint with the Secretary of
                  Labor (in this section referred to as the “Secretary”) alleging such
                  discharge or discrimination. . . .
  36     42 U.S.C. § 5851(b)(2)(B):
                  (B) If, in response to a complaint filed under paragraph (1), the
                  Secretary determines that a violation of subsection (a) has occurred,
                  the Secretary shall order the person who committed such violation to
                  (i) take affirmative action to abate the violation, and (ii) reinstate the
                  complainant to his former position together with the compensation
                  (including back pay), terms, conditions, and privileges of his
                  employment, and the Secretary may order such person to provide
                  compensatory damages to the complainant. If an order is issued under
                  this paragraph, the Secretary, at the request of the complainant shall
                  assess against the person against whom the order is issued a sum
                  equal to the aggregate amount of all costs and expenses (including
                  attorneys' and expert witness fees) reasonably incurred, as determined
                  by the Secretary, by the complainant for, or in connection with, the
                  bringing of the complaint upon which the order was issued.


         The Russello presumption does not always control the construction of a term
  or provision. The Third Circuit in Port Authority Trans-Hudson, Corp. v. Sec’y, U.S.
  Dep’t of Labor, 776 F.3d 157 (3d Cir. 2015), found that the presumption
  in Russello “only applies when the two provisions are sufficiently distinct that they
  do not—either explicitly or implicitly—incorporate language from the other
  provision.” Id. at 164. The Third Circuit did not find the Russello presumption
  persuasive because there was no “hypothesis of careful draftsmanship,” evidenced
  in the “inexact drafting in [FRSA’s 49 U.S.C.] § 20109.” Id. at 165, citing City of
  Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 435–36
  (2002) (notably not following the Russello presumption due to perceived drafting
  inconsistencies).

         This exception to or the inapplicability of the Russello presumption is
  appropriate here. “As in all cases of statutory interpretation, our task is to interpret
  the words of th[e] statut[e] in light of the purposes Congress sought to serve.”
  Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608 (1979); see also Dolan
  v. U.S. Postal Service, 546 U.S. 481, 486 (2006) (“Interpretation of a word or phrase
  depends upon reading the whole statutory text, considering the purpose and context
  of the statute, and consulting any precedents or authorities that inform the
  analysis”). The context of § 5851 reinforces the interchangeability of the terms
  “employer” and “person.” Employees authorized to sue in the complaint section are
  employed by employers prohibited in the prohibition section. If the Secretary
  determines that a violation has occurred, the Secretary may order remedies against
  the “person,” including action to abate the violation, reinstatement, back pay, and
  compensatory damages. The entity with power to discharge or affect the employee’s
  terms, conditions, and privileges of employment is an employer. The person with
  the power to reinstate an employee is an employer. Employers are expressly
  entitled to an affirmative defense in § 5851(b)(3)(D) because they are persons who
  are subject to complaint and liability. Importantly, the prohibition applicable to
  “employers” does not have a consequence for an entity that is not a “person.”
  Similarly, the complaint and remedies sections available to “any employee” against
  “any person” are linked solely to the prohibition applicable to “employers.”
  Excessive reliance on rules of construction like the Russello presumption is
  “unhelpful” in specific contexts, where they “run the risk of defeating the central
  purpose of the statute.” Cf. Kosak v. United States 465 U.S. 848, 853, n.9 (1984).




     b. ERA’s whistleblower provision is modeled after other environmental
        whistleblower provisions

         Section 5851’s use of “person” and “employer” is informed by its near
  replication of the 1977 amendments to the Clean Air Act (CAA), Pub. L. No. 95-95,
  91 Stat. 685 (Aug. 7, 1977). That provision provides the following:

                  (a) Discharge or discrimination prohibited
                  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 (or any person acting pursuant to a
                  request of the employee)-- . . . [engages in protected activity]

                  (b) Complaint charging unlawful discharge or discrimination;
                  investigation; order
                  (1) Any employee who believes that he has been discharged or
                  otherwise discriminated against by any person in violation of
                  subsection (a) may, within thirty days after such violation
                  occurs, file (or have any person file on his behalf) a complaint
                  with the Secretary of Labor . . .

                  (2)(A)…
                  (B) If, in response to a complaint filed under paragraph (1), the
                  Secretary determines that a violation of subsection (a) has
                  occurred, the Secretary shall order the person who committed
                  such violation to (i) take affirmative action to abate the
                  violation, and (ii) reinstate the complainant to his former
                  position together with the compensation (including back pay),
                  terms, conditions, and privileges of his employment, and the
                  Secretary may order such person to provide compensatory
                  damages to the complainant.

  42 U.S.C. § 7622 (1977). In the 1977 CAA whistleblower provision, Congress did not
  define “employer” but defined “person” in another section of the CAA to include the
  federal government.




                  (e) The term “person” includes an individual, corporation,
                  partnership, association, State, municipality, political
                  subdivision of a State, and any agency, department, or
                  instrumentality of the United States and any officer, agent, or
                  employee thereof.

  42 U.S.C. § 7602(e) (1977). As with § 5851, “person” and “employer” are used
  interchangeably in the CAA’s overall structure, as limited by the definition of
  “person.”

         The ARB has concluded that the CAA contains a clear waiver of federal
  sovereign immunity for the remedies available to a successful complainant based on
  CAA’s definition of “person” to include the federal government. Erickson v. U.S.
  Envtl. Prot. Agency, ARB Nos. 03-002, et seq. ALJ Nos. 1999-CAA-002, et seq. (ARB
  May 31, 2006). In 2005, the Office of Legal Counsel (OLC) recognized that the CAA
  and Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6971, defined “person” in a
  manner that included the federal government, but the Federal Water Pollution
  Control Act, 33 U.S.C. § 1367 (FWCPA, Clean Water Act, or CWA), omitted the
  clear language including the federal government in its definition of “person.” 37

         These references to other environmental provisions are not included to argue
  that Congress intended for § 5851 to adopt their respective definitions but to
  exemplify the interrelationship between “person,” “employer,” and “employee.” In
  these environmental whistleblower statutes, Congress did not intend “employer”
  and “person” to refer to separate entities. Congress borrowed the language of one


  37     29 Op. O.L.C. 171 (Sept. 23, 2005). The 1976 SWDA’s anti-retaliation provision
  provides the following:
                  No person shall fire, or in any other way discriminate against, or
                  cause to be fired or discriminated against, any employee or any
                  authorized representative of employees by reason of the fact that such
                  employee or representative has filed, instituted, or caused to be filed
                  or instituted any proceeding under this Act or under any applicable
                  implementation plan, or has testified or is about to testify in any
                  proceeding resulting from the administration or enforcement of the
                  provisions of this Act or of any applicable implementation plan.
  42 U.S.C. § 6971. SWDA’s definition of “person” was amended to include federal
  government. Id. at § 6903(15).


  statute as model for the other. 38 The absence of a definition of “employer” has not
  created a sovereign immunity problem or “equivocalness” when the statute clearly
  defines “person” to include the federal government. Here, we simply face the
  converse.

       c. Environmental whistleblower case law has recognized the interchangeability
          of “employer” and “person” in other contexts

         Section 5851’s precedent recognizes the interchangeability of “person” and
  “employer” outside of the sovereign immunity context. Billings v. OFCCP, No 1991-
  ERA-035, slip op. at 2 (Sec’y Sept. 24, 1991) (“It is well established that a necessary
  element of a valid ERA claim under Section 5851 is that the party charged with
  discrimination be an employer subject to the Act”); see also DeFord v. Sec’y of Labor,
  700 F.2d 281, 286 (6th Cir. 1983).

         Similar conclusions as to the interchangeability of “employer” and “person”
  but the importance of “employer” in qualifying the reach of the provision have been
  discussed in CAA case law. In Varnadore v. Oak Ridge Nat’l Lab., Nos. 1992-CAA-
  002, -005, 1993-CAA-001 (ARB June 14, 1996), the ARB observed that the Secretary
  of Labor (before the creation of the ARB) had held that while the CAA’s definition of
  “person” includes “individuals,” individuals are not subject to suit under the
  environmental whistleblower provisions of the Toxic Substances Control Act and
  the CAA, which, like § 5851, prohibit “employers” from retaliating against
  employees who engage in protected activity. “[P]ersons who are not ‘employers’
  within the meaning given that word in the ERA may not be held liable for
  whistleblower violations.” Slip op. at 34-35 (denying claim against the Secretary of
  Energy), citing Stevenson v. Nat’l Aeronautical & Space Admin., No. 1994-TSC-005,
  slip op. at 3-5 (Sec’y July 3, 1995) (subordinating the CAA’s definition of “person,”
  which includes “individuals,” because “[t]he plain language of these employee
  protection provisions suggests that they were intended to apply to persons who are
  employers. That classification does not include the employees named here as
  respondents. Any other construction would require a clearer statement of intent
  than appears in the statutes at issue.”).



  38    S. Rep. 95-848, 95th Cong., 2d Sess. (May 15, 1978), available at 1978 WL 8524; see
  also Mackowiak v. Univ. Nuclear Sys. Inc., 735 F.2d 1159, 1163 (9th Cir. 1984).


       d. Construing “person” independent of “employer” renders § 5851 meaningless for
          specified employers

          The NRC’s strained reading segregating “employer” from “person” in §
  5851(a) would place employees of named employers without a remedy against their
  retaliating employers even though the complaint and remedies sections give “any
  employee” a remedy against “any person” discharging or discriminating with
  respect to their terms, conditions, and privileges of employment in violation of the
  prohibition section. 39 The NRC’s implausible construction would emasculate a
  pivotal definitional section and Congress’s expressed intent as to the applicability of
  the prohibition. United States v. Menasche, 348 U.S. 528, 538–39 (1955) (“‘The
  cardinal principle of statutory construction is to save and not to destroy.’ . . . Courts
  must ‘give effect, if possible, to every clause and word of a statute. . .’”). The NRC
  fails to provide any plausible construction for construing the terms independently.
  Corely v. United States, 556 U.S. 303, 314 (2009) (a court’s construction must be
  read so that each of the sections will be operative and not superfluous).

        In Lane v. Pena, 518 U.S. 187 (1996), U.S. Dep’t of Energy v. Ohio, 503 U.S.
  607 (1992), and United States v. Nordic Village, 503 U.S. 30 (1992), the Supreme
  Court examined and compared multiple statutory sections to conclude that
  Congress did not unequivocally waive immunity for the requested relief in the
  challenged section because another section (or a definition) including waiver for the
  United States or providing for monetary or punitive damages could be plausibly


  39     In Lane, 518 U.S. at 193, the Supreme Court distinguished the relationship between
  § 504(a) and § 505(a)(2) from that of § 501 and § 505(a)(1). Concluding that there was no
  waiver under §505(a)(2), the Court sharply distinguished “the precision with which
  Congress has waived the Federal Government’s sovereign immunity from compensatory
  damages” in the remedy section connected with Section 501 of the Rehabilitation act, 29
  U.S.C. § 791, prohibiting disability discrimination in federal government. Section 505(a)(1),
  the remedy section associated with Section 501, provides the following:
                  The remedies, procedures, and rights set forth in section 717 of the Civil
                  Rights Act of 1964 [which allows monetary damages] ... shall be available,
                  with respect to any complaint under section 501 of this Act, to any employee
                  or applicant for employment aggrieved by the final disposition of such
                  complaint, or by the failure to take final action on such complaint.
  29 U.S.C. § 794a(a)(1) (emphasis added). I would hold that the ERA’s relationship between
  “employer” and “person” resembles this relationship and not that between § 504(a) and §
  505(a)(2) where the Court in Lane found no waiver.


  read as limited to that one area and not include the challenged section. Accordingly,
  the case for waiver in the challenged section was equivocal with respect to the
  requested relief, and the interpretation of that section without waiver was plausible
  because the pieces of the statute fit or fit even better without waiver.

         In § 5851’s whistleblower provision, there is no such logical construction
  separating “employer” and “person.” There is not, for example, a separate remedies
  section that applies to named “employers” who are not “persons” to explain
  Congress’s naming “the Commission” and “the Department of Energy” as
  “employers.” When Congress amended “employer” to include the NRC, it must have
  intended it to be both an “employer” and “person” throughout the prohibition,
  complaint, and remedies sections. Analogously, when Congress defined “person” in
  the CAA, it intended the term “employer” to be applicable to those persons even
  though “employer” is not defined.

          I would hold that § 5851’s construction of “person” and “employer” in this
  matter is similar to the Court’s construction of the term “tax,” “taxpayer,” and “any
  civil action” in United States v. Williams, 514 U.S. 527 (1995). Williams was not a
  taxpayer by some definitions, but the Supreme Court concluded that she was
  authorized to sue under 28 U.S.C. § 1346(a)(1) because the tax affected her. Not
  allowing Williams to sue under § 1346(a) would have left her without a viable
  remedy to reclaim the money she had spent satisfying the lien. This fact reinforced
  the Court’s conclusion that this was not Congress’s intent. Justice Scalia,
  concurring in Williams, stated that the rule of strictly construing waivers “does not,
  however, require explicit waivers to be given a meaning that is implausible.” 514
  U.S. at 541. “The exemption of the sovereign from suit involves hardship enough
  where consent has been withheld. We are not to add to its rigor by refinement of
  construction where consent has been announced.” Id., quoting Anderson v. Hayes
  Constr. Co., 243 N.Y. 140, 147, 153 N.E. 28, 29–30 (1926) (Cardozo, J.).

                                          Summary

        I do not find equivocalness in § 5851’s use of “employer” and “person.” 40 I
  would give effect to Congress’s amendment stating precisely what the text of the

  40    Section 5851’s interconnected use of “employer” and “person” is not an instance
  where Congress has used “person” in a sentence, clause, or section inconsistently or there is
  a competing definition of “person” such that a generic, undefined use of “person” in the


  amendment states. Conn. Nat. Bank v. Germain, 503 U.S. 249, 253–254 (1992)
  (“[C]ourts must presume that a legislature says in a statute what it means and
  means in a statute what it says there”). When Congress amended § 5851 in 2005 to
  add the NRC as an “employer,” it intended that the NRC also be a person subject to
  the complaint and remedies provisions.

         I recognize the Supreme Court’s case law strictly construing waivers.
  McMahon v. United States, 342 U.S. 25, 27 (1951). The Supreme Court has also
  stated that strict construction is neither hostile nor hyper-technical construction.
  “[Courts] should not take it upon [them]selves to extend the waiver beyond that
  which Congress intended. Neither, however, should we assume the authority to
  narrow the waiver that Congress intended.” Smith v. United States, 507 U.S. 197,
  203 (1993). In analyzing the issue of immunity, the Supreme Court does not require
  that Congress use magic words to effect waiver. To the contrary, the Court has
  observed that the sovereign immunity canon “is a tool for interpreting the law’ and
  that it does not ‘displac[e] the other traditional tools of statutory construction.’”
  Richlin Security Serv. Co. v. Chertoff, 553 U.S. 571, 589 (2008). “What we thus
  require is that the scope of Congress’ waiver be clearly discernable from the
  statutory text in light of traditional interpretive tools. If it is not, then we take the
  interpretation most favorable to the Government.” Fed. Aviation Admin. v. Cooper,
  566 U.S. 284, 291 (2012). Tribunals are not “self-constituted guardian[s] of the
  Treasury import[ing] immunity back into a statute designed to limit it.” Indian
  Towing Co. v. United States, 350 U.S. 61, 69 (1955).

        Respectfully, I dissent from the majority’s opinion. I would hold that
  Congress, in the 2005 amendments, expressly waived NRC’s immunity when it
  included NRC as an “employer” prohibited from retaliation in violation of § 5851. 41
  The ERA’s generic use of “person,” without definition and in light of the specificity

  statute cannot borrow another reference or context where waiver is express. U.S. Dep’t of
  Energy v. Ohio, 503 U.S. 607, 617–19 (1992). Here, the ERA’s whistleblower provision
  contains a simple prohibition and complaint and remedies sections intimately connected
  with the prohibition.
  41     The majority cites to pending legislation seeking to “clarify” § 5851’s definition of
  “person” for the point that the legislation without a definition of “person” is ambiguous.
  Majority Opinion, supra page 12 n.32. The pending legislation is equally indicative of
  judicial construction failing to give plain language its intended effect. At some point, “strict
  construction” is less “construction” of legislation and more akin to the imposition of a
  limitation on Congress’s power.


  of “employer” in the prohibition section, does not create equivocalness to preclude a
  finding of waiver.