Firms Have Received More Than $3M in Reimbursed Legal Costs Over Hanford Whistleblowers
Mike Nartker and staff reports
WC Monitor
7/3/2014
URS appears to be considering seeking reimbursement from the Department of Energy of more than half-a-million dollars for having one of its executives testify before Congress on whistleblowers at Hanford, according to a letter Sen. Claire McCaskill sent to Secretary of Energy Ernest Moniz last week. McCaskill chairs the Senate Subcommittee on Financial and Contracting Oversight, which held a hearing in March on whether workers at the Hanford Waste Treatment Plant can raise concerns without fear of retaliation. Among those who testified at the hearing was James Taylor, General Manager of the Global Management and Operations Services at URS, which is a major subcontractor at the WTP. “In responses to questions asked for the hearing record, URS answered that it intended to seek reimbursement for more than $650,000 in … expenses to be paid by DOE, including lawyers who would effectively be billing the government almost $1,300 per hour,” McCaskill wrote in her June 24 letter to Moniz.
McCaskill went on to write, “After the Subcommittee notified URS that it would publish that response in this letter, URS updated its response to indicate it had not made a determination whether it would seek reimbursement or not.” URS declined to comment this week as to whether it plans to seek reimbursement for the costs associated with Taylor’s testimony, as well as how it calculated such costs. DOE did not respond by press time July 3 when asked if URS has submitted a request for reimbursement or whether the Department would grant such a request. WTP project contractor Bechtel National, which also had an executive testify at the March hearing, has “declined” to seek reimbursement, McCaskill wrote.
Should DOE Reimburse Legal Costs When It Comes to Alleged Whistleblowers?
McCaskill also noted in her letter that Bechtel and URS have been reimbursed a total of $3.5 million from DOE for legal costs tied to suits filed by two former senior WTP managers who have alleged they were removed from the project, or fired altogether, for raising safety concerns. The bulk of the reimbursed legal costs–$3 million—have gone to URS, which was the employer of Walter Tamosaitis and Donna Busche. Tamosaitis, who formerly held the position of manager of the WTP’s research and technology group, has alleged he was removed from working at the Hanford vit plant in 2010 for raising technical concerns. URS laid off Tamosaitis in the fall of 2013. Busche held the position of environmental and nuclear safety manager, and has alleged she was fired by URS earlier this year for raising safety concerns. Tamosaitis and Busche have each filed suits against Bechtel and URS, which have repeatedly denied that the two were targets of retaliation. In May, though, a federal court granted Busche’s request to drop her lawsuit.
In a statement this week, a Department spokesperson said DOE allows for “provisional reimbursement” of contractors’ legal costs on cost-reimbursable contracts on “a case by case basis.” Bechtel spokesman Fred deSousa noted in a separate response this week that DOE has not made a final determination on whether Bechtel will be reimbursed for its legal costs associated with the two former WTP employees. “Bechtel National has been provisionally reimbursed for a portion of its legal costs incurred in the performance of its contract, as allowed by the contract and applicable federal regulations,” deSousa said. “The Department of Energy uses the regulations to make the decisions on reimbursement, and those decisions are then reviewed and audited after the legal matter is resolved. Regarding the suits in question, each has been voluntarily withdrawn or dismissed by the court.”
During the March subcommittee hearing, McCaskill questioned, though, whether DOE’s policy gave contractors an unfair advantage against whistleblowers. “I know how expensive it can be to get to a court of law, especially if one side has a lot of resources and the other side has zip. It puts the side with the superior resources in a commanding position. And you can see how that could be offensive if, in fact, those commanding resources are coming from the United States government,” she said. “You know, I don’t want to chill people wanting to do business with the federal government by them thinking that they’re going to be subjected to costly litigation. On the other hand, this doesn’t seem fair to me the way this is currently situation.”
DOE’s policy is “an ongoing abuse of taxpayer money,” Tom Carpenter, executive director of the watchdog group Hanford Challenge, said this week. “The inequities are staggering from the outset: an employee has been fired and is without income or hope of continuing their career, in many cases. They might be lucky enough to find a lawyer to take on their cases on contingency, but that is rarely the case, and they will always be on the hook for costs,” Carpenter said in a written response. “The accused employer, on the other hand, can both rid the workplace of a truth-teller and get the government to pay unlimited attorney fees to fight the case. Yet DOE claims to have ‘zero tolerance for retaliation?’ More like zero tolerance for whistleblowers,” he said.
State Court Denies Tamosaitis Appeal
This week, the Washington State Court of Appeals upheld a ruling that dismissed the case brought by Tamosaitis against Bechtel National. The Benton County Superior Court was correct to dismiss the case because Tamosaitis failed to show he had suffered a financial loss as a result of being removed from work on the WTP, the appeals court found in a decision published this week. Tamosaitis said he planned to appeal the decision to the Washington State Supreme Court. Bechtel is confident the courts will affirm their previous rulings should Tamosaitis appeal, said Bechtel spokesman Todd Nelson.
In the Benton County case, Tamosaitis had filed a lawsuit claiming that Bechtel had interfered with his business relationship with URS Corp. However, after Tamosaitis was removed from the vitrification plant project in July 2010, he continued to be employed by URS until fall 2013, when he was laid off. Tamosaitis presented some evidence suggesting that his removal resulted in him not being considered for some other positions at the vitrification plant, but there was no evidence those positions would have resulted in higher pay, according to the appeals court decision. The court also found that he did not offer sufficient proof for his argument that he had not advanced to URS’s executive pay grades because his reputation had been damaged.
The appeals court also upheld the lower court’s refusal to vacate its decision when Tamosaitis said he had new evidence of damages, including lost incentive pay. Tamosaitis also has a claim before the U.S. Department of Labor and has an appeal pending on a federal court lawsuit against URS and DOE, which was dismissed before going to trial.
