Criscione v. U.S. Nuclear Regulatory Commission (agency decision, March 22, 2019)

Plain-English summary

Lawrence Criscione alleged that the Nuclear Regulatory Commission violated the Energy Reorganization Act's employee protections. OSHA found the NRC was not a covered employer, and an ALJ dismissed for lack of subject-matter jurisdiction. Criscione petitioned the Board, then invoked the ERA's district-court option because more than one year had passed without a final Department of Labor decision and no bad-faith delay was shown. The Board found both statutory conditions satisfied and stated that he had filed the de novo action. It dismissed the administrative complaint.

Decision snapshot

• Cited authority: 42 U.S.C. § 5851(b)(4)
• Outcome: Administrative ERA complaint dismissed after de novo district-court filing.
• Key point: Once the one-year ERA period passed without a final agency decision and without bad-faith delay, the complainant could move the matter to federal court.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  IN THE MATTER OF:

  LAWRENCE CRISCIONE,                             ARB CASE NO.        2018-0052

                  COMPLAINANT,                    ALJ CASE NO. 2017-ERA-00009

         v.                                             DATE: March 22, 2019

  U.S. NUCLEAR REGULATORY
  COMMISSION,

                  RESPONDENT.


  BEFORE:         THE ADMINISTRATIVE REVIEW BOARD


                       ORDER DISMISSING COMPLAINT

        On May 20, 2014, Lawrence Criscione filed a complaint with the
  Department of Labor’s Occupational Safety and Health Administration
  (OSHA) alleging that the Respondent United States Nuclear Regulatory
  Commission (NRC) had violated the employee protection provisions of the
  Energy Reorganization Act of 1974 (ERA) 1 and its implementing
  regulations. 2 After investigating Criscione’s complaint, OSHA concluded that
  NRC is not a covered employer under the Act. Criscione objected to OSHA’s
  findings and requested a hearing before a Department of Labor
  Administrative Law Judge (ALJ). On June 13, 2018, the ALJ issued an
  Order Dismissing Complaint on Summary Decision for Lack of Subject
  Matter Jurisdiction. 3 On June 22, 2018, Criscione filed a timely petition for


  1      42 U.S.C. § 5851

  2      29 C.F.R. Part 24

  3      Criscione v. U.S. Nuclear Regulatory Commission, ALJ No. 2017-ERA-009 (ALJ)
  (June 13, 2018).



  review with the Administrative Review Board.

           On March 7, 2019, Criscione filed a Notice with the Board stating his
  intention to file an action pursuant to 42 U.S.C. § 5851(B)(4), with the
  appropriate United States District Court on or after March 22, 2019, and in
  compliance with 29 C.F.R. part 24.11(a)(b), seeking de novo review. The ERA
  permits a complainant to file an action in the appropriate district court if the
  Secretary of Labor has not issued a final decision within one year after the
  filing of a complaint and if there is no showing that the complainant acted in
  bad faith in delay of the proceedings. Both conditions are met in this case.
  Accordingly, given that Criscione has filed a de novo complaint in this action
  in the U.S. District Court as provided in 42 U.S.C. § 5851(b)(4) and 29 C.F.R.
  Part 24, we hereby DISMISS Criscione’s complaint.

  SO ORDERED FOR THE BOARD.




                                          WILLIAM T. BARTO
                                          Chief Administrative Appeals Judge