U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Avenue, N.W.

Washington, D.C. 20210

In the Matter of:

GREGORY KELLY,

COMPLAINANT,

v.

ARB CASE NO.

2019-0080

ALJ CASE NOS. 2019-CER-00001

2019-ERA-00007

2019-CAA-00004

2019-CAA-00005

DATE:

SEP 3 0 2019

STATE OF ALABAMA PUBLIC

SERVICE COMMISSION,

RESPONDENT.

Appearances:

For the Complainant:

Gregory Kelly, prose, 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 A.l\JD 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

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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.

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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. § 24.1 lO(b).

SO ORDERED.