Revised April 16, 1999

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 98-60123

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JOSEPH J. MACKTAL, JR.,

Petitioner,

VERSUS

UNITED STATES DEPARTMENT OF LABOR,

Respondent.

___________________________________________________

Petition for Review of an Order of the

United States Department of Labor

___________________________________________________

April 13, 1999

Before GARWOOD, DAVIS, and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Petitioner Joseph J. Macktal requests review of a final order

of the Secretary of Labor, pursuant to Section 210(c)(1) of the

Energy Reorganization Act ("ERA"). 42 U.S.C. § 5851(c)(1) (1978).

More particularly, he seeks reversal of a Final Decision and Order

of the Administrative Review Board ("ARB"), dismissing his claim

against Intervenor-Respondent Brown & Root, Inc. ("Brown & Root")

under the whistle blower protection provision of the ERA. ERA §

210(a), codified at 42 U.S.C. § 5851(a) (1978) ("Section 210"). For

reasons that follow, we deny Macktal’s petition for review and

affirm the ARB’s Final Decision and Order.
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I.

Brown & Root was the general contractor in the construction of

the Comanche Peak Steam Electric Station ("CPSES"), a nuclear power

plant assembled during the 1980s near Fort Worth, Texas. Brown &

Root hired Macktal in January 1985 as a journeyman electrician at

CPSES. He was promoted to electrical foreman in May 1985.

As foreman, Macktal supervised a crew of employees inspecting

electrical conduits to ensure that they had been properly

installed. In this role, he developed a number of safety concerns,

which he reported to his immediate supervisor. He was subsequently

given a counseling report and demoted to journeyman electrician in

September 1985. He was reassigned to the night shift, where he was

issued a safety violation for failing to wear proper eye protection

when operating a band saw. A few days later, he was reassigned once

more to the day shift. Macktal testified that he was subsequently

asked to perform various activities in violation of safety

procedures. He made safety-related complaints to his supervisor,

the general foreman, and SAFETEAM, an independent safety group

established by and operated under the direction of the CPSES "site

owner," Texas Utilities Electric Co. He alleges that he was then

subjected to numerous forms of harassment, including citation for

an unwarranted safety violation, loss of his tools, a delayed

paycheck, failure to receive a personal phone call, and refusal of

management to grant a request for leave without pay. Macktal

reported this alleged harassment to SAFETEAM.

On January 2, 1986, Macktal was given a counseling report for
3

excessive absenteeism. He responded the next day with a handwritten

memorandum in which he objected to the counseling report and stated

that his "plan of action" was to file a noncompliance complaint

with the Nuclear Regulatory Commission ("NRC") concerning the safe

operation of CPSES. He also stated in the memorandum: "In a[n]

effort to preserve my health and avoid any further harassment, I

wish to be relieved of my duties until the TEC, NLRB, NRC can

resolve these matters." A few hours after Macktal submitted this

memorandum, his employment with Brown & Root was terminated.

Macktal did not object to this action, and testified that he

understood he was being terminated. At the time of his termination,

Macktal had not yet contacted any government agency concerning any

safety violations, and did not do so until several months later.

In February 1986, Macktal filed a claim against Brown & Root

with the Secretary of Labor under Section 210, alleging that he had

been constructively discharged. The Wage and Hour Division of the

Department of Labor notified Macktal in March 1986 that his claim

lacked merit. Macktal requested a hearing before an administrative

law judge ("ALJ"). The ALJ encouraged the parties to settle, and

the parties signed a settlement agreement in January 1987. Macktal

later sought to have the settlement set aside. In November 1989,

the Secretary issued an order rejecting one paragraph of the

settlement as contrary to public policy, but otherwise approving

the settlement. This court reversed the Secretary’s order in

Macktal v. Secretary of Labor, 923 F.2d 1150 (5th Cir. 1991),

holding that the Secretary was required to accept or to reject the
4

settlement in its entirety. On remand, the Secretary issued a new

order in October 1993 disapproving the settlement and remanding the

case to the ALJ for a hearing on the merits.

The ALJ finally held a hearing on the merits in February 1996,

more than a decade after the original claim was filed. Prior to the

hearing, Brown & Root twice moved for summary judgment. At the

hearing, the ALJ ruled that internal whistle blowing was not

protected under Section 210 and the prior rulings of this court,

and that the ALJ therefore would not consider Macktal’s internal

complaints as support for his claim. In November 1996, the ALJ

issued a Recommended Decision and Order granting Brown & Root’s

motion for summary judgment. Macktal filed exceptions to the ALJ’s

Recommended Decision and Order. In January 1998, after further

briefing, the ARB issued a Final Decision and Order dismissing

Macktal’s complaint, finding that Macktal had not engaged in any

protected activity under the ERA. This timely petition followed.

II.

Review of the ARB’s Final Decision and Order is governed by

the standard of review set forth in the Administrative Procedure

Act, 5 U.S.C. § 706(2). This court must affirm the Secretary’s

decision unless it is arbitrary, capricious, an abuse of

discretion, or otherwise contrary to law, or unless the decision is

not supported by substantial evidence. 5 U.S.C. § 706(2)(A). Agency

interpretations of circuit law, however, are reviewed de novo. See

Harris v. Railroad Retirement Board, 3 F.3d 131, 133 (5th Cir.

1993).
1In 1992, Congress amended the ERA to include explicit

protection for internal complaints. The act as amended protects an

employee who "notified his employer of an alleged violation of this

chapter or the Atomic Energy Act of 1954," 42 U.S.C. §

5851(a)(1)(A), and an employee who "refused to engage in any

practice made unlawful by this chapter or the Atomic Energy Act of

1954, if the employee has identified the alleged illegality to the

employer," 42 U.S.C. § 5851(a)(1)(B). These amendments do not apply

here, because the present claim was filed well before the October

24, 1992 date of enactment.

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III.

Macktal argues that the ARB erred in finding that he had not

engaged in any protected activity under Section 210 prior to his

termination by Brown & Root. He contends that the ARB

misinterpreted circuit precedent to foreclose recovery. We

disagree. Though our reasoning differs somewhat from that of the

ARB, we nonetheless conclude that the ARB acted correctly in

dismissing Macktal’s complaint.

Prior to the 1992 Amendments to the ERA, Section 210 provided

as follows:

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)--

(1) 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, or

a proceeding for the administration or enforcement of any

requirement imposed under this chapter or the Atomic

Energy Act of 1954, as amended;

42 U.S.C. § 5851(a) (1978) (emphasis added).1

The complainant has the initial burden of establishing a prima

facie case of discrimination under this provision. To meet this
2Brown & Root argues that, irrespective of the merits,

Macktal’s claim has been extinguished by his refusal to return

settlement funds he received from Brown & Root. That issue was

addressed in an earlier order by the Secretary of Labor, dated July

11, 1995, which Brown & Root did not appeal. Regardless, it was not

raised in the Final Decision and Order at issue here, and therefore

falls outside of this court’s jurisdiction under 42 U.S.C. §

5851(c)(1). 

6

burden, the complainant must show: (1) that he engaged in protected

activity; (2) that the employer was aware of the protected

activity; (3) that the employer took some adverse action against

him; and (4) that the evidence is sufficient to permit an inference

that the protected activity was the likely reason for the adverse

action. See County v. Dole, 886 F.2d 147, 148 (8th Cir. 1989).

The principal question before us is whether the ARB erred in

determining that Macktal failed to show that he was engaged in

protected activity at the time of the alleged adverse actions.2 The

ARB’s determination that Macktal was not engaged in protected

activity under Section 210 is based on this court’s opinion in

Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984). The

similarities between Brown & Root and the present case are

substantial. The complainant in Brown & Root, Charles Atchison, was

a field quality control inspector for Brown & Root at CPSES. In the

course of his duties, Atchison filed several nonconformance reports

alleging that certain work at CPSES did not conform to construction

specifications. He was later discharged and filed a complaint under

Section 210. On review from a final order of the Secretary of Labor

finding that Brown & Root’s actions had violated Section 210, this

court held that Atchison’s internal quality control reports did not
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rise to the level of protected activity under Section 210. Id. at

1031. The court reasoned that Section 210 was "designed to protect

’whistle blowers’ who provide information to government entities,

not to the employer corporation." Id. at 1034. The court further

stated that "employee conduct which does not involve the employee’s

contact or involvement with a competent organ of government is not

protected under section 5851." Id. at 1036.

Macktal seeks to distinguish his case from Brown & Root on two

grounds. First, he notes that Atchison’s nonconformance reports

were all routine internal reports filed pursuant to Atchison’s jobrelated responsibilities, whereas Macktal "went beyond his chainof-command and contacted SAFETEAM, a semi-independent and NRCendorsed program specifically designed to review whistleblower

allegations." Macktal points out that SAFETEAM’s own internal

operating procedures both mandated that SAFETEAM report certain

violations on its own to the NRC and recognized that contacts with

SAFETEAM were a "forewarning of a later allegation to the NRC or

another regulatory body." Second, Macktal notes that Atchison never

gave any indication that he was about to contact the NRC or any

other official government agency, whereas Macktal delivered a

handwritten memorandum to his superiors at Brown & Root just hours

before his termination advising management that he was going to

contact the NRC. Macktal argues that these extra actions on his

part, absent in Brown & Root, bring his conduct within the sphere

of protected activity under the "about to" language of Section 210.

He notes that the Brown & Root panel expressly omitted the phrase
3Unpublished opinions issued before January 1, 1996 are

binding precedent in this circuit. See 5TH CIRCUIT RULE 47.5.3.

8

"about to" when it quoted the "relevant language" of Section 210.

See id. at 1031. Thus, he argues, the panel’s reasoning does not

extend to that portion of the statute. We find these distinctions

unavailing.

A.

With respect to Macktal’s complaints to SAFETEAM, we are

governed by this court’s opinion in Ebasco Constructors, Inc. v.

Martin, No. 92-4576 (5th Cir. Feb. 19, 1993).3 The complainant in

Ebasco, Ronald J. Goldstein, was employed by Ebasco Constructors,

Inc. as a craft supervisor in the construction of a nuclear power

plant for Houston Lighting and Power Company. In 1985, Goldstein

registered several safety and quality concerns with his supervisor,

with Ebasco’s quality assurance group, and with the SAFETEAM

program at his plant. He subsequently received several low

performance reviews, was reassigned several times to increasingly

clerical jobs, and was ultimately laid off. Goldstein filed a claim

with the Department of Labor alleging a violation of Section 210.

On petition for review from a final order of the Secretary finding

that Ebasco had violated Section 210, this court vacated, holding

that Goldstein’s claim was "clearly controlled" by Brown & Root.

Id., slip op. at 3. The court found that "[t]he complaints filed by

Goldstein were purely internal." Id., slip op. at 4. More

importantly, the court expressly determined that Goldstein’s

complaints to SAFETEAM "did not constitute either a complaint to an
4Macktal urges us in the alternative to take this matter en

banc on the court’s own motion and to overrule Brown & Root. We

decline to do so. Macktal may, of course, file a formal suggestion

for rehearing en banc at the appropriate time. See FED. R. APP. P.

35.

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agency or commencement of a proceeding under § 5851." Id. Thus, the

court concluded, none of Goldstein’s complaints were protected

under Section 210. Id.

Ebasco is clearly controlling in the present case. This court

adheres strictly to the maxim that one panel of the court cannot

overturn another, even if it disagrees with the prior panel’s

holding. See Texas Refrigerator Supply v. FDIC, 953 F.2d 975, 983

(5th Cir. 1992). A "purpose of institutional orderliness" is served

by "our insistence that, in the absence of intervening Supreme

Court precedent, one panel cannot overturn another panel,

regardless of how wrong the earlier panel decision may seem to be."

Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 425-26 (5th

Cir. 1987). Nothing in the record or in the briefs distinguishes

Macktal’s complaints to SAFETEAM here from Goldstein’s complaints

to SAFETEAM in Ebasco, nor does Macktal suggest that any

intervening Supreme Court precedent exists to justify overturning

Brown & Root or Ebasco. We therefore find that Macktal’s complaints

to SAFETEAM are not protected activity under Section 210.4

B.

Macktal’s memorandum expressing his intention to file a

complaint with the NRC presents a more difficult issue. As Macktal

observes, the Brown & Root court did not consider the "about to"
10

provision of Section 210, because that provision was irrelevant

under the facts of Brown & Root. Contrary to the ARB’s findings,

this strongly suggests that the issue of whether Macktal’s

memorandum was protected activity under Section 210 is not directly

governed by Brown & Root or Ebasco. The Secretary notes that this

very same argument was unsuccessfully argued before this court in

Ebasco, and that although the court did not specifically address

the argument, it nonetheless concluded that Brown & Root was

controlling. A prior panel’s silence on a particular issue,

however, is not binding on this panel. It therefore falls to us to

determine whether a written expression of intent to file a

complaint with the NRC constitutes protected activity under Section

210. We conclude that it does.

We need go no further than the plain language of Section 210

to conclude that a written expression of intent to file a complaint

with the NRC is protected activity under the ERA. Section 210

protects from retaliatory action any employee who "commenced,"

"caused to be commenced," or "is about to commence or cause to be

commenced" a proceeding under the ERA or the Atomic Energy Act. 42

U.S.C. § 5851(a)(1) (1978). When the Brown & Root panel concluded

that "employee conduct which does not involve the employee’s

contact or involvement with a competent organ of government is not

protected" under Section 210, 747 F.2d at 1036, it was plainly

referring only to the "commenced" and "caused to be commenced"

provisions. Were we to hold that present contact or involvement

with a competent organ of government is a requirement of the "about
11

to commence" provision as well, there would be nothing to

distinguish that provision from the other two; it would become a

nullity. If the "about to commence" provision is to have any

distinct meaning at all, it must encompass some employee actions

prior to actual contact with a competent organ of government. A

written expression of intent to file a complaint with the NRC falls

squarely within that sphere of action. We therefore conclude that

Macktal’s memorandum expressing his intention to file a complaint

with the NRC was protected activity under the "about to" provision

of Section 210.

As noted above, however, evidence that the complainant engaged

in protected activity is only the first of four prima facie

requirements under Section 210. Macktal must also show that the

evidence is sufficient to permit an inference that the protected

activity was the likely reason for the adverse action. It is at

this point that his claim collapses. In addition to expressing his

intention to file a complaint with the NRC, Macktal also stated in

his memorandum: "In a[n] effort to preserve my health and avoid any

further harassment, I wish to be relieved of my duties until the

TEC, NLRB, NRC can resolve these matters." The ARB observed that

"[i]t would have required considerable mental gymnastics on the

part of Brown & Root managers to recognize that, when Macktal said

he wanted to be relieved of his duties, he really meant he wanted

to be reassigned to work that did not require him to violate NRC

procedures." Macktal v. Brown & Root, Inc., 86-ERA-23, slip op. at

5 (Sec’y Dec. Jan. 6, 1998). Thus, the ARB concluded, "[w]e agree
5Brown & Root argues that it is entitled to an award of

sanctions under 28 U.S.C. §§ 1912 and 1927 and FED. R. APP. P. 38.

We do not find that Macktal’s appeal was frivolous or meritless.

Therefore, Brown & Root’s request for sanctions is denied.

12

with the ALJ that a reasonable person could only interpret

Macktal’s request as a resignation and could not be held

responsible for failure to intuit what Macktal now claims was on

his mind." Id., slip op. at 5-6. The ARB’s conclusion is clearly

supported by substantial evidence, and we do not find it to be

arbitrary, capricious, an abuse of discretion, or otherwise

contrary to law. Thus, the Final Decision and Order of the ARB must

be affirmed.

IV.

For the foregoing reasons, Macktal’s petition for review is

DENIED and the Final Decision and Order of the ARB is AFFIRMED.5