Battelle employee says he was forced out for fraud complaint

Doug Toomer, who had worked at INL and its predecessors for several decades and was an expert in the operation and management of nuclear material and spent nuclear fuel, was involved in drafting the agreement. According to Toomer’s complaint, in 2015 he learned TerraPower had applied for a patent for a “duplex liner” developed under the agreement and didn’t disclose it to the government as required. Toomer also said TerraPower intended to sell it abroad, another violation of the agreement.

“By not having the entitled rights under the CRADA, the Government and U.S. Taxpayer are deprived of jobs and benefits that would be obtained from the manufacturing of the Subject Invention (i.e. nuclear fuel rods) in the United States and the worldwide licensing of such rights for current reactors and for next generation advanced nuclear reactors, which is hundreds of millions of dollars per reactor,” Toomer’s complaint says. “Recognizing that this will likely affect (tens) if not (hundreds) of reactors, this equates to the loss of billions of dollars in jobs and benefits for the Government and U.S. Taxpayer. In addition, allowing these nuclear fuel rods to be manufactured outside of the United States, including China, India and Russia, would result in potential liability and harm to national security of the United States.”

According to court documents, TerraPower maintained the invention was “background intellectual property,” not a “subject invention” covered by the agreement. Documents say BEA reviewed the issue and thought it was a subject invention, but TerraPower didn’t change its stance and BEA didn’t recommend any action be taken. The complaint says Toomer brought his concerns to the attention of his superiors, who didn’t do anything.

“Toomer received repeated indications that BEA was particularly enamored with TerraPower, and its founder Bill Gates, and did not want to jeopardize BEA’s relationship with them,” the complaint says.

The complaint says Battelle’s lawyer told Toomer “his (the lawyer’s) job was to protect BEA and not to look out for me (Toomer), DOE or the taxpayer,” and told Toomer to be prepared for “ramifications” if he kept pushing. Toomer was, according to the complaint, then denied a year-end bonus, stripped of his responsibilities at his 2015 year-end review and told to find work elsewhere in Battelle. He quit in May 2016.

“He was basically blacklisted by his supervisors there, and it became a hostile environment, intolerable,” said Nathan Olsen, Toomer’s lawyer. “He was isolated from management and his co-workers kept their distance. Ultimately, he resigned. He really had no choice for his own health and wellbeing. It was, in effect, a constructive discharge.”

Toomer filed his claim in June 2016 under the False Claims Act, which lets people file claims on behalf of the government alleging defrauding of government programs. It was sealed for more than two years as it worked its way through the courts, and was only recently unsealed. The U.S. Attorney’s office urged U.S. District Judge David Nye to dismiss the case. Nye dismissed the False Claims Act claims in October 2018 but said Toomer could move forward with his retaliation claim.

“From the time Battelle Energy Alliance ... first became aware of Mr. Toomer’s lawsuit, BEA has denied all claims asserted against BEA by Mr. Toomer, who voluntarily resigned his employment with BEA in May of 2016,” INL Chief Counsel Mark Olsen said in an email. “As can be seen by examination of the court’s docket report of this case, on Nov. 20, 2017, the United States Government filed its motion to dismiss the seven fraud-related claims in Mr. Toomer’s complaint. On Oct. 10, 2018, the court granted the Government’s motion to dismiss, resulting in the dismissal of all fraud-based claims, thereby leaving only Mr. Toomer’s employment claim, which BEA will defend vigorously.”

TerraPower didn’t respond to a request for comment, and a Battelle spokeswoman referred the Post Register to INL.

Nye’s ruling cites several reasons for dismissing the fraud complaint. It says the government hasn’t lost anything yet, since TerraPower’s patent application hasn’t been approved and the agreement between TerraPower and Battelle is effect until 2023, giving the government time to pursue it if it wishes. Federal attorneys also argued the case would waste government time and resources and hinder DOE’s work with Battelle and TerraPower.

Nathan Olsen said Toomer’s ultimate hope is that the False Claims Act complaint will be reinstated and taxpayers reimbursed for what he calls “TerraPower’s fraud.”

“He’s a 40-year-plus employee at the INL, and he cares very deeply about the mission of the INL,” Olsen said. “He has always felt that these recent activities with TerraPower and the violation of their agreements and the public trust jeopardizes the mission of the INL. As he expressed to his superiors, and is still deeply concerned about, when the people or the public hears about this, they’re going to question as to why we’re spending precious resources on someone like Bill Gates and not getting anything for it.”