Whistleblower Anthony Rivera Takes his Case to the Court of Appeals

Editor’s Note: Editor’s Note: La Jicarita has been covering Anthony Rivera’s case against Lawrence Livermore National Laboratory since October of 2015. After revealing safety and management abuses at the Lab he was fired by the new contractor, Lawrence Livermore National Security (LLNS) in 2013. In January of 2014 he filed a Department of Energy (DOE) 708 Whistleblower complaint against LLNS, which alleges LLNS retaliation for his complaints. After a year of waiting for DOE Secretary Ernest Moniz to review his whistleblower complaint, he  filed a lawsuit on January 19, 2016  against the LLNS and two Department of Energy officials. The DOE agreed to hear Rivera’s whistleblower case but after failing to have his petition reviewed by either former Secretary Moniz or current Secretary Perry he has now taken his case to the court of appeals.

Anthony P. X. Bothwell
Law Offices of Anthony P. X. Bothwell
558 Presidio Blvd., Ste. B
Box 29547
San Francisco, CA 94129-0547
Tel: (415) 370-9571
E-mail: apxb007@msn.com

November 27, 2018


Over 5 years ago, Anthony T. Rivera, a 29 year award-winning senior engineer blew the whistle on safety and mismanagement violations at Lawrence Livermore National Laboratory (LLNL) in California, managed by Lawrence Livermore National Security (LLNS), a for-profit DOE/NNSA contractor. Compounding the stress for Mr. Rivera and his family, through December 31, 2013, Mr. Rivera had a LLNS management-approved FMLA to help care for his wife who is disabled with muscular dystrophy, and who was then recovering from breast cancer surgery and radiation treatment. In October of 2013, in a “brutal and callous” act, LLNS fired Mr. Rivera while he was still within his approved FMLA period.

Mr. Rivera filed for California unemployment benefits, but LLNS contested it, claiming Mr. Rivera was fired “for cause.” Mr. Rivera appealed the decision in writing and submitted supporting documents in a CA Unemployment Benefit Appeals Hearing. On 1-31-14, Mr. Rivera received the Judge’s decision for Case 5083477 which stated, “The employer has not sustained its burden to show that the claimant’s conduct was willful or wanton under the circumstances and therefore has not shown misconduct. Accordingly, the employer discharged the claimant for reasons other than misconduct and the claimant is not disqualified for benefits under code section 1256.”

From the onset of their Washington, D.C. armchair telephonic investigations, the DOE Office of Hearings and Appeals (OHA) officials failed to acknowledge Mr. Rivera’s 10 C.F.R. Part 708 Whistleblower case as one meeting the criteria of a “Hostile Work Environment”. According to the DOE OHA, “a hostile work environment claim is actionable under the Part 708 regulations,” and a hostile work environment “arises when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of victim’s employment and create an abusive working environment.” Through the course of the investigation and hearing, it was clear enough to Mr. Rivera that DOE never intended to hold LLNS or NNSA accountable for acts of retaliation, safety violations, mismanagement, abuse of authority, or deliberate misrepresentations.

On September 27, 2017, OHA Judge Palmer stated, “The record in this matter is clear that Mr. Rivera engaged in protected activity when he made his flash lamp bank disclosure and his disclosure regarding the interlock systems in B327. Moreover, he has been able to establish, through the knowledge/timing test, the existence of a nexus between those disclosures and his termination.” However, by permitting severe time truncation of Mr. Rivera’s complaint, not ordering LLNS to produce all relevant documents to support his case, not holding LLNS accountable for deliberate misrepresentations, along with poorly defined protected disclosures, OHA found LLNS would have fired Mr. Rivera anyway.

Since 1992, Mr. Rivera, being of both Native American and Hispanic ancestry from the state New Mexico, had been an advocate for all minority employees working at LLNL, and was a spokesperson for a group of Lab employees called the Association of Ethnic Minorities (AEM) concerned about workplace employment disparities. AEM efforts were vigorously supported by the late U.S. Rep. Ron Dellums (D-CA) during that period.

Despite frequent DOE “talking points” to the contrary, Mr. Rivera does not believe DOE protects employees that have a questioning attitude for safety or acts of mismanagement within the DOE Complex. A 2016 GAO report on DOE Whistleblower policies and practices reached similar conclusions.

The DOE/NNSA has reimbursed (bankrolled) LLNS well over a quarter of a million dollars to defend them against Mr. Rivera, while leaving the former lab employee to financially fend for himself. DOE reimbursements to contractors represent a financial paradise for law firms eager to rack up billable hours from DOE contractors that have no financial “skin” in the game. Mr. Rivera believes low-threshold contractor legal fee reimbursements enable contractor misconduct, and strongly gears the DOE OHA process to a predetermined outcome in favor of the contractor.

Mr. Rivera wrote to both DOE Secretary Rick Perry and to President Trump in the hope and expectation they would be sensitive to allegations of Federal Agency bias. Mr. Rivera never received a response from either Secretary Perry or the White House. On September 28, 2018, Mr. Rivera was informed by the DOE OHA Director that his Petition for Secretarial Review was dismissed by DOE OHA.

Today, Anthony P. X. Bothwell, the attorney representing Mr. Rivera, filed in the Ninth Circuit U.S. Court of Appeals, papers saying in part: “Mr. Rivera, an award-winning senior engineer, made protected disclosures alleging safety hazards, mismanagement, waste of funds, and abuse of authority. Lawrence Livermore National Security LLC (LLNS) subsequently terminated his 29-year career, alleging performance and discipline issues. Pursuant to 10 CFR Part 708, Mr. Rivera in 2014 complained to the Department of Energy (DOE), alleging retaliation.”

“After a hearing before a DOE administrative judge, DOE dismissed the retaliation complaint, while finding LLNS did retaliate for protected disclosures. The Secretary of Energy declined to review the case. …. Mr. Rivera had to litigate in U.S. District Court to induce DOE to allow a hearing on his retaliation case.”

Atty. Bothwell commented today, “We will prove to a three judge panel in the Ninth Circuit that the Livermore lab’s management had no lawful, non-retaliatory reason for terminating his career.”

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