                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            DEC 12 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


RICHARD L. NELSON,                               No.   15-73548

              Petitioner,                        ARB Case No. 13-075
                                                 Department of Labor
 v.

U.S. DEPARTMENT OF LABOR,                        MEMORANDUM*

              Respondent,

ENERGY NORTHWEST,

              Respondent-Intervenor.


                     On Petition for Review of an Order of the
                               Department of Labor

                            Submitted December 8, 2017**
                                Seattle, Washington




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                           Page 2 of 3
Before: TALLMAN and WATFORD, Circuit Judges, and BENITEZ,*** District
Judge.

      1. The Administrative Review Board (ARB) properly affirmed the

Administrative Law Judge’s (ALJ) dismissal of Richard Nelson’s claim under the

Energy Reorganization Act, 42 U.S.C. § 5851. Section 5851 “protects energy

workers who report or otherwise act upon safety concerns.” Sanders v. Energy

Northwest, 812 F.3d 1193, 1196 (9th Cir. 2016). Nelson’s retaliation claim rests

on a catch-all provision, which protects employees who participate “in any other

action to carry out the purposes of” the Act. 42 U.S.C. § 5851(a)(1)(F).

      To establish a prima facie case of retaliation, Nelson must show that: (1) he

engaged in a protected activity; (2) Energy Northwest knew or suspected that he

engaged in the protected activity; (3) he suffered an adverse action; and (4) the

circumstances were sufficient to raise the inference that the protected activity was a

contributing factor in the adverse action. Sanders, 812 F.3d at 1197. Nelson

argues that his participation in a “security investigation,” in which he refused to

confirm Energy Northwest’s accusations of wrongdoing, constitutes protected

activity under the Act. We find that argument unpersuasive.




      ***
            The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
                                                                          Page 3 of 3
      Conduct within the scope of the Act’s protection must have “a sufficient

nexus to a concrete, ongoing safety concern.” Id. at 1198. Here, Energy

Northwest’s investigation was primarily concerned with internal reports of

improper per diem practices and unauthorized travel expenses, not safety or

security issues. Substantial evidence supports the ALJ’s conclusion, as affirmed

by the ARB, that Nelson never raised a safety or security issue during the

investigation. Nelson’s conduct was therefore not protected activity under the Act.

      Because Nelson did not engage in protected activity, we need not address the

other elements of his retaliation claim. The ARB properly affirmed the ALJ’s

dismissal of his claim.

      PETITION FOR REVIEW DENIED.
