Kelly v. State of Alabama Public Service Commission (agency decision, September 30, 2019)

Plain-English summary

Gregory Kelly filed several complaints under environmental whistleblower statutes, including the Clean Air Act. OSHA dismissed the complaints as untimely and for lacking reasonable cause, and the ALJ gave Kelly an opportunity to address timeliness and jurisdiction. The ALJ found his submissions nonresponsive, dismissed any whistleblower claims as untimely, and found no jurisdiction over the remaining claims. Kelly's petition to the Board did not explain the late filings or establish Department of Labor jurisdiction. The Board denied review and made the ALJ's order final.

Decision snapshot

• Cited authorities: 42 U.S.C. § 7622; 29 C.F.R. §§ 8.9(a), 24.100, and 24.110(b)
• Outcome: The petition for review was denied, making the ALJ's dismissal the final order of the Secretary of Labor.
• Key point: Review was inappropriate where the petition did not answer the complaints' unexplained untimeliness or the ALJ's jurisdiction ruling.

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:


  GREGORY KELLY,                                    ARB CASE NO.    2019-0080

                  COMPLAINANT,                      ALJ CASE NOS. 2019-CER-00001
                                                                  2019-ERA-00007
         v.                                                       2019-CAA-00004
                                                                  2019-CAA-00005

                                                    DATE:      September 30, 2019

  STATE OF ALABAMA PUBLIC
      SERVICE COMMISSION,

                  RESPONDENT.


  Appearances:

  For the Complainant:
        Gregory Kelly, pro se, Montgomery, Alabama

  For the Respondent:
        State of Alabama Public Service Commission,
        Montgomery, Alabama

  BEFORE: William T. Barto, Chief Administrative Appeals Judge and
  Heather C. Leslie, Administrative Appeals Judge


      FINAL DECISION AND ORDER DENYING PETITION FOR REVIEW

        As noted by the Administrative Law Judge (ALJ) below, in 2018 and 2019
  Gregory Kelly (“Kelly” or “Complainant”) filed multiple complaints with the U.S.
  Department of Labor, Occupational Safety and Health Administration (“OSHA”)



  under various environmental whistleblower statutes, including, but not limited to,
  the Clean Air Act (“CAA”). 42 U.S.C. § 7622; 29 C.F.R. § 24.100, et seq. By letter,
  OSHA notified Complainant that it was dismissing his complaints because they
  were untimely and failed to establish reasonable cause to believe that whistleblower
  retaliation had occurred. Complainant filed objections and requests for hearing with
  the Office of Administrative Law Judges challenging OSHA’s determinations.
  Noting jurisdictional issues raised by the various complaints, the ALJ assigned to
  hear the case directed the Complainant to show cause why his complaints should
  not be dismissed and provided him an opportunity to submit additional evidence
  and argument. The ALJ reviewed Complainant’s submissions and determined that
  they were nonresponsive to the issues noticed in the Orders to Show Cause. The
  ALJ concluded that, to the extent that Complainant’s filings may have stated a
  complaint under any of the whistleblower protection statutes within his jurisdiction,
  the complaints were untimely. And to the extent that Complainant’s filings may
  have stated a claim under various non-whistleblower-protection statutes, the ALJ
  concluded that he lacked jurisdiction to adjudicate those claims. For these reasons,
  the ALJ dismissed the complaints before him.

          Complainant timely filed a petition for review with the Administrative
  Review Board (ARB or Board). “The Board may decline review of any case whenever
  in its judgment review would be inappropriate because of lack of timeliness, the
  nature of the relief sought, the case involves only settled issues of law, the appeal is
  frivolous on its face, or other reasons.” 29 C.F.R. § 8.9(a)(2018); Secretary’s Order
  No. 01-2019 (Delegation of Authority and Assignment of Responsibility to the
  Administrative Review Board), 84 Fed. Reg. 13,072 (Apr. 3, 2019)(directing use of
  rules of practice at 29 C.F.R. Part 8 for, inter alia, whistleblower appeals).

         Upon review of the matters submitted by Complainant in connection with his
  petition, we are unable to identify any explanation as to the untimeliness of his
  putative whistleblower complaints, as found by the ALJ below, nor is there any
  argument advanced by Complainant as to why the Department of Labor might have
  jurisdiction over the various other claims raised in his pleadings. We have
  considered the fact that Complainant is self-represented, but we also note that he is
  an experienced litigant, having filed over 20 similar complaints with the
  Department of Labor since 2009. Under these circumstances, and in light of the
  well-reasoned decision below, we determine that review of this matter would, in our
  judgment, be inappropriate due to the uncontroverted and unexplained



  untimeliness of the complaints at issue and the lack of jurisdiction noted by the ALJ
  below.

        Accordingly, the Petition for Review filed by Complainant is hereby
  DENIED. The ALJ’s Decision and Order, dated 22 August 2019, is the final order of
  the Secretary of Labor in this matter. See 29 C.F.R. § 24.110(b).

         SO ORDERED.