Coalition for a Healthy Environment (CHE) files friend of the court brief in Carson v. Dept. of Energy whistleblower appeal at U.S. Merit Systems Protection Board.

UNITED STATES MERIT SYSTEMS PROTECTION BOARD
<http://www.mspb.gov>

Joseph P. Carson, Appellant <http://www.carsonversusdoe.com>
<jpcarson@mindspring.com> 865-300-5831

versus

Department of Energy, Agency <http://www.energy.gov>

Docket Number:
AT-1221-01-0025-W-1

Date: February 15, 2001

AMICUS CURIAE (FRIEND OF THE COURT) BRIEF OF THE COALITION FOR A HEALTHY ENVIRONMENT (CHE) <http://www.che-or.org/>

I. Statement

Per 5 CFR 1201.34 the Coalition for a Healthy Environment (CHE), a non-profit organization incorporated in Tennessee, respectfully submits an amicus curiae brief. CHE does so because of its deep concern that the reprisal the Department of Energy has, for many years, taken against the appellant, Joseph P. Carson, P.E, evidences a conspiracy between DOE attorneys, personnel specialists and DOE line managers.

Coalition for a Healthy Environment (CHE), of which I'm President, developed from the need of a support and research group involving the illnesses of workers at the Department of Energy Nuclear Facilities (K-25, X-10 and Y-12) and citizens of Oak Ridge, Tennessee and the surrounding area. We are interested in helping those who have been harmed by the contamination and operations of the Department of Energy facilities. This includes DOE safety professionals, like Mr. Carson, who risked and sacrificed much in putting professional duty ahead of economic self-interest, for the cause of workplace and public health.

CHE has provided much educational outreach about the need for legislative relief for past and present DOE workers, their families, and others impacted by DOE. Many are deceased, disabled, or diseased because of unsafe and unhealthy conditions in DOE sites. In large part the existence and persistence of these unsafe conditions was enabled by the "success" of the unlawful, unethical, arrogant, and unaccountable 3-D legal tactics -Defame, Deny and, above all else, Delay - of DOE and DOE contractor attorneys in contesting any claim of a sick worker, no matter how well-founded.

As the attached "December 7, 2000, Statement of the President" shows, the Energy Employee Occupational Illness Compensation Act of 2000, is intended to compensate thousands of DOE workers who sacrificed their health, due to workplace hazards they were neither informed of nor protected from, in building the nation's nuclear defenses. In CHE's opinion, DOE attorneys, and their "scorched earth" legal tactics, are a principal cause for the harms now being compensated. It is CHE's opinion that if DOE attorneys are found to have engaged in an unlawful conspiracy against Mr .Carson, it could have significant impact on ongoing efforts to improve the scope and benefits of the compensation provided by this law.

President Bush has, under the law, an opportunity to recommend expanding the new law to cover covers more impacted people more fully. CHE hopes to bring to President Bush's attention the "compassionate conservatism" of Joe Carson, P.E., in stubbornly and persistently done his duty, at great personal and professional cost, risk, and sacrifice; in the hope he will decide to recommend increasing the compensation available.

I did not go to work for a DOE contractor at a DOE owned facility to serve my country. I was a contractor employee, not a public employee as Mr. Carson. I had already served my country in the military. I applied for and got a job to provide for my family - I was assured I was in a safe working environment. It turned out I was lied to in fact my health was destroyed - my dreams for my retirement were also destroyed. I am sentenced to the rest of my life in bad health, financial poverty and a burden on my wife and family. My story is only one of many. I only wish someone like Joe Carson had been at my DOE facility when I worked there. Maybe I'd be healthy today - I could have quit DOE and I would have, had

I know of the workplace risks I faced and DOE's unwillingness to identify them, let alone correct them.

I've had a number of conversations with Leah Dever, the Manager of Oak Ridge Operations, it seemed to me that she wanted me to trust her, that she wanted CHE's support. I'm quite disillusioned that she denied Joe Carson's repeated requests for an opportunity for a transfer, detail or reassignment to Oak Ridge Operations when his program was abolished, and that she even added "insult to injury" by describing his request as "fundamentally unfair" - after he prevailed in a Final Board decision as a whistleblower and despite DOE's polity of "zero tolerance for reprisal!"

I think everyone concerned about health and safety in DOE also has reason to be offended by Ms. Dever's "fundamentally unfair" characterization of Mr. Carson's reasonable request, particularly given the October 2000 Recommendation of Judge Vitaris, who agreed that DOE, regardless of its "zero tolerance for reprisal" policy, owed Mr. Carson just what he had asked of Ms. Dever in March 2000.

I understand Ms. Dever is DOE's "Deciding Official" in this case. I think she should immediately direct that Joe Carson be promoted to a management position in Oak Ridge Operations. I and others in CHE cannot think of anyone else whose promotion to a management position would be more welcomed by more people in this community It would be a beacon to hope to many who have much cause for despair. What's "fundamentally unfair" about that?

The overall administrative record shows Mr. Carson has "prevailed" - he obtained attorneys fees, if nothing else - as a result of no fewer than seven whistleblower appeals or petitions for enforcement of Final Board Orders in his whistleblower appeals (Judge Vitaris' October 2000 Recommendation of non-compliance still pends before the Full Board, but the agency did not contest it.) The record shows he has obtained almost $400,000.00 in attorney fees and costs as a result with over $100,000.00 in his attorney fees, costs and consequential damages still in litigation. The record doesn't show how much money the agency has spent defending its unlawful actions against Mr. Carson, it's probably well over a million dollars. =

Yet, Mr. Carson still alleges reprisal involving key present and former agency managers, including the present Oak Ridge Operations Office Manager, Leah Dever, the past manager, James Hall, and the past Deputy Manager, Steve Richardson. CHE understands that Ms. Dever is scheduled to testify at the hearing and subpoenas will be issued to obtain the testimony of Mr. Hall and Mr. Richardson. CHE considers this case, as his previous related cases, to demonstrate, clearly, an outrageous abuse of authority by involved DOE officials, including its attorneys, personnel specialists, and line managers.

CHE thinks the case has most troubling implications for workplace and public health and safety in DOE's Oak Ridge facilities and for the safeguards and security of America's nuclear stockpile and nuclear weapons secrets. Certainly, Mr. Carson's allegations and the administrative record of his case make an open lie of some of the pretexts by which this agency has operated, including the oft-repeated DOE Secretarial pledge of "zero tolerance for reprisal."

Additionally, if he is successful in forcing DOE to admit such a conspiracy exists or in demonstrating it to this Board, it could have quite significant implications on the willingness of Congress and the President to substantively improve the existing Energy Employees Compensation Act, bringing hope, relief, and a fuller measure of justice to many who were abused, just as Mr. Carson has been, by this agency.

II. Conclusion

CHE is filing this amicus curiae brief at this point, instead of later, because Board rulings in the near future about the scope of the attorney-client privilege may prove crucial in allowing the appellant to substantiate his allegations, via discovery, of conspiracy. CHE calls for DOE employees and managers, with whom the attorney-client privilege resides, to waive it freely, as is their right, instead of using it to cloak possibly unlawful actions of DOE attorneys. If they won't freely waive it, we respectfully request the Board to consider the extraordinary circumstances of this appeal and direct the attorney-client privilege be revoked as necessary.

Additionally, I respectfully request an opportunity for myself and other community members to testify at this hearing about Mr. Carson's singular qualifications for promotion and how his promotion to a management position in Oak Ridge Operations would be beneficial to the entire community.

If the Board desires supporting declarations from me and/or other CHE members to accompany this amicus curiae brief, we will respectfully and promptly provide them.

Respectfully Submitted,

Harry Williams, President, CHE <harry.williams2@worldnet.att.net>