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A $1.5 million judgment awarded to
a Dugway Proving Ground whistle-blower was overturned Tuesday in a
ruling by a federal appeals court, gutting an earlier ruling by
saying only the executive branch can control security clearances
and that no hostile discrimination had been proven.
The 10th U.S. Circuit Court of Appeals decision
was a blow to Salt Lake City resident David W. Hall, a former
chemist who filed a successful discrimination lawsuit based in
part on claims he lost his security status after complaining about
environmental violations at the weapons research facility in
Tooele County.
"I guess all I can do is sit back and cry,"
Hall said Tuesday evening. "I'm just in a state of shock. This has
been going on since 1989."
Tuesday's ruling ignored a 2002 ruling by a
U.S. Labor Department administrative law judge, who agreed the
Army had illegally punished Hall for disclosing problems at the
secret weapons facility with at least nine kinds of "hostile
treatment."
Instead, the appeals court focused on a
subsequent finding by Labor's Administrative Review Board, which
agreed with the Army appeal argument that Hall hadn't proven the
Army discriminated against him.
The review board, citing a 1988 U.S. Supreme
Court ruling, Department of the Navy v. Egan, ruled that
investigating Hall's claims would have required impermissible
scrutiny of the Army's revocation of his security clearance.
The Egan decision, the board said, made clear
that only the executive branch - not the courts - could make such
national security determinations and that to do otherwise would
require a specific act of Congress.
The board also said none of Hall's other claims
of discrimination had merit.
Hall's attorney, Mick Harrison, a lawyer
affiliated with the Chemical Weapons Working Group in Berea, Ky.,
argued to no avail to the review board - and the appeals court -
that the Egan case wasn't at issue. Instead, Harrison claimed, the
board should have relied on separate environmental statutes that
protect whistle-blowers and that Dugway should have the burden of
proving it didn't discriminate against Hall.
Calls to Harrison's office and mobile phone
Tuesday night were not returned. Dugway spokeswoman Paula
Nicholson said she couldn't comment on the case because it could
still go to the U.S. Supreme Court, making it "possible pending
litigation."
Hall said the court's decision only to look at
the review board's ruling and not even consider DiNardi's verdict
was taking "the easy way out." Hall said political shifts under
the Bush administration, including the 2001 Patriot Act, could
have influenced the more recent rulings.
"I became very pessimistic with the change of
government," he said.
Hall worked at Dugway as a chemist from 1987 to 1997, when he
resigned and sued the Department of the Army, alleging he'd been
forced out of his job because he'd repeatedly raised concerns
regarding hazardous waste, hazardous substances and chemical
warfare agents.
He made his first allegation of unsafe
practices in 1989. When the Army was cleaning lewisite
contamination from soils at Simpson Butte on Dugway property, Hall
complained the analytical procedures used in determining whether
the soil was "clean" were faulty and likely to produce a false
negative reading for contamination. Lewisite is a deadly blister
agent considered seven times more lethal than the mustard gas
deployed on World War I battlefields.
* The Army used a faulty device to determine
the contents of old chemical-weapons munitions that was unable to
detect nitrogen, a key element in many chemical warfare agents and
high explosives.
* Shortly before the U.S.-led attack on Iraq in
1991, the Army proposed distributing to troops a certain type of
gas mask made of silicon rubber, which Hall and at least one other
Dugway chemist pointed out has been known to absorb certain
dangerous chemicals rather than shield against them.
The federal Occupational Safety and Health
Administration cited Dugway for numerous violations in 1991.
In 2002, after a 57-day
appeals hearing on an Occupational
Safety and Health Administration decision against Hall,
David W. DiNardi, a Labor Department administrative law judge,
vindicated Hall in a searing 127-page ruling.
DiNardi said that "in a conspiracy against
him," Dugway bosses had demoted Hall, stripped him of his security
clearance and ordered him to undertake repeated mental
examinations to try to stop him from further whistle-blowing.
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