781 F.3d 468
9th Cir.2014Background
- Dr. Walter Tamosaitis, an engineer working on the Hanford Waste Treatment Plant (WTP) through URS Energy & Construction, raised safety concerns about an unresolved "M3 mixing" design issue and opposed closing it prematurely.
- After circulating concerns and emails, Bechtel (the prime contractor) requested his removal; URS operations manager Dennis Hayes removed Tamosaitis from the WTP project and reassigned him to a non‑supervisory role offsite.
- Tamosaitis filed an ERA (42 U.S.C. § 5851) whistleblower complaint with DOL‑OSHA in July 2010 naming "URS Inc." and later amended to name URS Corp., URS E&C, and DOE; he opted out to federal court under the ERA’s one‑year opt‑out clause and sued in November 2011.
- The district court dismissed DOE for failure to exhaust, granted summary judgment for URS Corp. (parent company) for lack of exhaustion and lack of employer liability, granted summary judgment for URS E&C on the ground Bechtel — not URS E&C — made the adverse decision, and struck the jury demand.
- The Ninth Circuit affirmed dismissal of DOE and URS Corp., reversed summary judgment for URS E&C (finding triable issues on causation/ratification and adverse action), and held Tamosaitis has a Seventh Amendment right to a jury trial for his money‑damages ERA claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ERA opt‑out requires an employer to be named in the agency complaint for one year before federal suit | Tamosaitis argued the substantive claim, not strict naming, should control and that his amendments and position statements sufficed | Defendants argued adding or renaming respondents restarts the one‑year clock and absent one year against a named respondent suit is premature | Court held respondents must have notice and opportunity to participate for one year; adding a new respondent restarts the clock unless the original filing adequately named them |
| Whether DOE and URS Corp. were exhausted as respondents | Tamosaitis contended DOE and URS Corp. were sufficiently implicated by agency filings | DOE/URS Corp. said they were not named or given opportunity for one year to defend | Court affirmed dismissal of DOE and URS Corp. for lack of administrative exhaustion (URS E&C distinguished because agency filings clearly identified it) |
| Whether URS E&C can be liable where Bechtel instigated removal (causation/ratification) | Tamosaitis argued URS E&C knew of Bechtel’s retaliatory motive and ratified/acquiesced by removing/transferring him, creating a contributing‑factor causal link | URS E&C argued it merely complied with contractual/customer demand and Bechtel — not URS E&C — made the adverse decision | Court found emails and evidence create a triable issue that protected activity was a contributing factor and that URS E&C ratified/acquiesced; reversed summary judgment for URS E&C |
| Whether ERA opt‑out suits in district court carry a right to jury trial | Tamosaitis asserted the claim is legal in nature (wrongful transfer/discharge analog) and seeks compensatory damages, so Seventh Amendment applies | Defendants argued no statutory jury right and that administrative (public‑right) scheme means no constitutional jury right when Congress assigned initial adjudication to agency | Court held no statutory jury right in §5851(b)(4) but recognized a constitutional Seventh Amendment right to jury trial for money damages in district court; Granfinanciera/Monterey distinctions explained |
Key Cases Cited
- Mackowiak v. Univ. Nuclear Sys., Inc., 735 F.2d 1159 (9th Cir.) (ERA protects safety‑based whistleblowing)
- DeFord v. Sec’y of Labor, 700 F.2d 281 (6th Cir.) (scope of ERA protections and public interest in whistleblower channels)
- Weinberger v. Salfi, 422 U.S. 749 (Sup. Ct.) (purposes of administrative exhaustion)
- Stone v. Instrumentation Lab. Co., 591 F.3d 239 (4th Cir.) (treatment of de novo opt‑out review and administrative first‑bite)
- Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (Sup. Ct.) (statutory text vs. Seventh Amendment jury right analysis)
- Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (Sup. Ct.) (historical/remedial analysis for Seventh Amendment jury right)
- Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (Sup. Ct.) (public‑rights framework and limits on Seventh Amendment when Congress assigns claims to non‑Article III tribunals)