The plaintiff, Dr. Tamosaitis, was an employee of a? Hanford ?subcontractor? who ?was ?appointed ?to lead a study reviewing technical challenges within a waste treatment plant being constructed to clean up the Hanford Nuclear site. Tamosaitis wanted to extend ?the ?time ?for ?resolving? certain ?issues ?by three months, which would have jeopardized a $6 million fee to the general contractor. Dr. Tamosatis objected at a meeting. Two days later he was fired.

On July 30 2010, he filed an administrative claim against his employer, ?URS Inc.? with the US Department of Labor (?DOE?) under the anti- retaliation provision of the Energy Reorganization Act (?ERA?). An entity named ?URS Corp.? answered and asserted that an entity named ?URS E&C? was the employer. On December 15, 2010, Tamosaitis added the US Department of Energy as a defendant. On September 7, 2011, he dropped ?URS Inc.? and added ?URS E&C? and ?URS Corp.?

The ERA provides that if the DOL fails to adjudicate the claim within one year, the plaintiff may go to federal court. Tamosaitis filed a complaint in federal court on November 9, 2011 and amended complaint on December 20. Tamosaitis asked for a jury trial. The district court granted the defendants? motion to dismiss. The court ruled that he did not wait a full year before filing in federal court with respect to DOE, and one-year had not elapsed since the substitution of ?URS Corp.? for ?URS Inc.? The district court also struck the jury demand on the basis the ERA did not provide for a jury trial.

Tamosaitis appealed. The Ninth Circuit affirmed in part and reversed in part. The court concluded that the one-year administrative exhaustion provision is measured per respondent and not to the claim. It held that ?before an employee may opt out of the agency process and bring a retaliation suit against a respondent in federal court, that respondent must have had notice of, and an opportunity to participate in, the agency process for one year.? The panel therefore upheld the dismissal of DOE and URS Corp. It reversed the? dismissal ?as ?to ?URS ?E&C ?because ?the original complaint put that entity on notice it was the intended respondent when URS Inc. was named.

On the merits, the panel held there was sufficient evidence against URS E&C that whistleblowing was a contributing factor in Tamosaitis?s termination.? ?The?? evidence?? showed? ?that? ?the general contractor pressured the employer to terminate the plaintiff and the employer either knowingly acquiesced or ratified the general contractor?s retaliation. The ERA forbids an employer from retaliating against an employee to maintain an advantageous business relationship threatened by an unlawful customer preference. In other words, ?where an employer takes an adverse employment action to satisfy a customer with a retaliatory motive of which the employer is aware, retaliation is a ?contributing factor? . . . in the employer?s decision to take the action.? In reversing the district court with respect to the jury trial right, the Ninth Circuit held that the Seventh Amendment allows ERA whistleblower retaliation ?claims ?to ?be heard ?by a ?jury when brought in federal court under the opt-out provision. The court applied the analysis adopted in City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) to determine first whether it is ?fairly possible? that a construction of the statute provides a right to a jury trial, and if not, whether the right is guaranteed by the Seventh Amendment.? ?The ERA expressly provides for compensatory damages, traditionally a form of legal relief.?? ?The court found that Tamosaitis?s whistleblower retaliation claim ?sounds in tort,? seeks compensatory damages, and is closely analogous to a common law claim for wrongful discharge.?? The right to a jury trial also extends to defendants.

The panel left for another day whether Congress had the constitutional authority to submit such claims to an administrative agency without a jury.

Tamosaitis v. URS Inc., 771 F.3d 559 (9th Cir.11/7/2014) (Berzon, Kozinski, Paez)