PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-1154 MICHAEL S. PECK, Ph.D., Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD; MARTY WALSH, U.S. Secretary of Labor, Respondents. On Petition for Review of an Order from the United States Department of Labor, Administrative Review Board. (2017-0062) Submitted: March 12, 2021 Decided: April 30, 2021 Before WILKINSON, AGEE, and FLOYD, Circuit Judges. Petition denied by published opinion. Judge Wilkinson wrote the opinion, in which Judge Agee and Judge Floyd joined. John M. Clifford, Billie P. Garde, CLIFFORD & GARDE, LLP, Washington, D.C.; John A. Kolar, GOVERNMENT ACCOUNTABILITY PROJECT, Washington, D.C.; Ned Miltenberg, Managing Partner, NATIONAL LEGAL SCHOLARS LAW FIRM, P.C., Bethesda, Maryland, for Petitioner. Kate S. O’Scannlain, Solicitor of Labor, Elena S. Goldstein, Deputy Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, Sarah K. Marcus, Deputy Associate Solicitor, Megan E. Guenther, Counsel for Whistleblower Programs, James M. Morlath, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent. WILKINSON, Circuit Judge: Petitioner Dr. Michael Peck is a Nuclear Regulatory Commission (NRC) employee who made disclosures to Congress and the NRC’s Inspector General regarding health and safety risks at a nuclear power plant. After the NRC rejected his applications for promotions, he brought a whistleblower-retaliation complaint under 42 U.S.C. § 5851. The Administrative Law Judge (ALJ) dismissed the case because the United States had not waived sovereign immunity for such whistleblower actions against the NRC. The Administrative Review Board (ARB) affirmed, and Peck petitioned for review before this court. Because we agree with the ARB that Congress has not waived sovereign immunity for complaints against the NRC, we deny the petition for review. I. Dr. Peck has worked for the NRC as a nuclear engineer since 2000. From 2007 to 2012, he served as the Senior Resident Inspector at the Diablo Canyon Nuclear Power Plant. After he left the plant, he took three protected actions regarding concerns he had with the safety conditions there. First, in 2013 and 2014, he filed a formal Differing Professional Opinion with the NRC. Second, in January 2015, Peck sent a letter to the Senate Committee on Environment and Public Works, which oversees the NRC. Third, in 2015 and 2016, he provided testimony to the NRC Inspector General. Since leaving the Diablo Canyon plant, Peck has served as a Senior Reactor Technology Instructor at the NRC’s Chattanooga, Tennessee, office. In 2016 and 2017, he applied for two promotions at the NRC. Peck submitted an application in October 2016 for a Senior Resident Inspector (SRI) position at the Callaway Nuclear Plant in Missouri. 3 In March 2017, he applied for the same position at a plant in Arkansas. He was passed over in both cases. In 2017, Peck filed a complaint with the Department of Labor pursuant to the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. 5801 et seq., as amended by Act of Nov. 6, 1978, Pub. L. No. 95-601, 92 Stat. 2947, and the Energy Policy Act …
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