Petition for Writ of Certiorari — Steven Onysko, Petitioner v. Martin J. Walsh, Secretary of Labor, et al.

Supreme Court briefSep 13, 2022

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IN THE SUPREME COURT OF THE UNITED STATES

STEVEN ONYSKO

Petitioner,

MARGIN J. WALSH, SECRETARY OF LABOR

.Administrative review board,

UNITED STATES DEPARTMENT OF LABOR

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth District

PETITION FOR WRIT OF CERTIORARI

STEVEN J. ONYSKO

COUNSEL OF RECORD

2286 DOC HOLIDAY DR.

PARK CITY, UT 84060

(435) 214-9251

SEPTEMBER 12, 2022

PETITIONER PRO SE

QUESTIONS PRESENTED

With Administrative Procedure Act (APA)

jurisdiction, the Tenth Circuit Court of Appeals

affirmed U.S. Department of Labor, Administrative

Review Board (ARB) affirmation of Office of

Administrative Law Judges dismissal at summary

decision of the Petitioner's "Safe Drinking Water

Act" (SDWA) whistleblower claims against the State

of Utah.

Congress prescribes, in U.S. Code, direction to

two different Standards of Review, in the

Administrative Procedure Act (APA), for the Circuit

Courts' review of final ARB orders on whistleblower

complaints. This includes the 29 CFR § 24.100(a)

six environmental statutes plus ERA. Employee

protections at CWA (33 U.S.C. § 1367(e)), SWDA (42

U.S.C. § 6971(e)), and CERCLA (42 U.S.C. § 9610(b))

look to APA 5 U.S. Code § 554, Adjudications.

Employee protections at SDWA (42 U.S.C. § 300j9(i)(3)(A), TSCA (15 U.S.C. § 2622(c)(1)), and CAA

(42 U.S.C. § 7622(c)(1)) look to APA 5 U.S. Code

§ 706, Scope of Review.

For the Circuit Courts, APA 5 U.S. Code

§ 706(2) articulates six standards of review, and

de facto seventh standard of review at coda.

Historically, the Tenth Circuit and most other

Circuit Courts have eviscerated sua sponte

Congress's prescribed standards of review at 5 U.S.

Code § 706(2) in applying these Circuits' articulated

Standards of Review. The Circuits’ conflicted

holdings are shown. Petitioner's questions follow.

5 U.S. Code

§ 706(2)

Circuits

Std. Review

§ 706(2)(A) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, D.C.,

§ 706(2)(B)

§ 706(2)(C)

§ 706(2)(D)

1, 6, 10

§ 706(2)(E)

§ 706(2)(F)

§ 706(2) Coda

First, in reviewing Onysko's appeals, did the

Tenth Circuit apply wrong standard of review—

§ 706(2)(A). i.e., wrongly liberalized § 706(2)(A)—to

accord unwarranted deference to ARB interpretation

of statute (SDWA) which it does not administer,

unwarranted deference to ARB interpretation of

statute (APA) it does not solely administer, but does

administer with other agencies, and unwarranted

deference to ARB interpretation of Supreme Court

decisions from well-settled summary judgment case

law?

Second, in reviewing Onysko's appeals, did

the Tenth Circuit apply wrong standard of review,

5 U.S.C. § 706(2)(E), and did the Tenth Circuit

make impossible finding there of supporting

substantial evidence in phantom record of

nonexistent agency hearing provided by statute?

Third, in reviewing Onysko's appeals, did

the Tenth Circuit apply wrong standard of review,

in omitting, from its applied Standard of Review,

§ 706(2)(B), § 706(2)(C), § 706(2)(D), § 706(2)(F), and

§ 706(2) coda?

Fourth, should the Court grant certiorari to

resolve the conflicts and confusion in the Circuit

Courts' holdings, none of which pay homage to the

plain language of the seven standards of review at

§ 706(2)(A)-(F), and § 706(2) coda, for the Circuit

Courts' review of final orders of the ARB and

other agencies, as Congress intended ?

COMPLETE LISTING OF PARTIES TO THE

PROCEEDING IN THIS COURT

Steven J. Onysko, Ph.D., P.E.

2286 Doc Holiday Dr.

Park City, UT 84060

(435) 214-9251

onysko5@burgoyne.com

Christopher M. Wolpert

Clerk of the Tenth Circuit Court of Appeals

United State Court of Appeals for the Tenth Circuit

Byron White United States Courthouse

1823 Stout St.

Denver, CO 80257

(303) 844-3157

clerk@ca 10 .uscourts. gov

Hon. Stephen R. Henley

Chief Administrative Law Judge

Office of the Administrative Law Judges

800 K Street, N.W., Suite 400-North

Washington, DC 20001-8002

Martin J. Walsh

Secretary of Labor

Office of the Secretary

US Department of Labor

200 Constitution Ave. NW

Washington, D.C. 20210

COMPLETE LISTING OF PARTIES TO THE

PROCEEDING IN THIS COURT (CONT'D)

Megan E. Guenther

Counsel for Whistleblower Protection Programs

Division of Fair Labor Standards

Office of Solicitor

200 Constitution Ave NW Room N-2716

Washington, DC 20210

(202) 693-5555

guenther.megan@dol.gov

Sarah J. Starrett

Counsel

Office of the Solicitor

U.S. Department of Labor

200 Constitution Ave. NW

Suite N-2716

Washington, DC 20210

(202) 693-5555

starrett.sarah@dol,gov

Jennifer S. Brand

Associate Solicitor

Division of Fair Labor Standards

200 Constitution Ave NW Room N-2716

Washington, DC 20210

(202) 693-5555

brand.jennifer@dol.gov

COMPLETE LISTING OF PARTIES TO THE

PROCEEDING IN THIS COURT (CONT'D)

Josephine Gross

Director

Directorate of Whistleblower Protection Programs

US Department of Labor, OSHA

200 Constitution Ave NW Room N-2716

Washington, DC 20210

(202) 693-5555

gross.josephine@dol.gov

Thomas O. Shepherd, Jr.

Division of Fair Labor Standards

200 Constitution Ave NW Suite S5220

Washington, DC 20210

(202) 693-6300

shepherd.thomas@dol.gov

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

COMPLETE LISTING OF PARTIES TO

THE PROCEEDING IN THIS COURT

TABLE OF CONTENTS

Vll

INDEX OF APPENDICES

TABLE OF AUTHORITIES

xiv

TABLE OF INITIALIZATIONS AND

ACRONYMS

xix

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

III. JURISDICTION

IV. STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

A. Statement of the issues.

B. Nature and course of the proceedings.

C. Onysko's whistleblower complaint’s

merits are not what the Petition is

about.

Vll

TABLE OF CONTENTS (CONT’D)

Page

D. Statement of facts.

E. Summary of Argument.

VI. REASONS FOR GRANTING THE

WRIT

A. The Tenth Circuit applied wrong

Standard of Review.

A.l The Tenth Circuit's

articulated Standard of

Review.

A.2 Wrong Standard of Review.

Hall v. U.S. Department of

Labor, 476 F.3d 847, 850

(10th Cir. 2007).

TABLE OF CONTENTS (CONT’D)

Page

A.3 Wrong Standard of Review:

When it applied standard of

review U.S. Code § 706(2)(A)

(i.e., arbitrariness, or

capriciousness, or abuse of

discretion, in agency order),

the Tenth Circuit looked

beyond the ARB’s Orders

A.4 Wrong Standard of Review:

Tenth Circuit 5 U.S. Code

§ 706(2)((E) nonsensical finding

of supporting substantial

evidence in phantom agency

hearing record given that no

hearing was held and no record

exists.

A.5 Wrong Standard of Review:

Absence of 5 U.S. Code § 706(2)

standards of review: § 706(2)(B),

(C), (D), and (F), missing.

.ii

TABLE OF CONTENTS (CONT'D)

Page

VI. REASONS FOR GRANTING THE

WRIT (CONT’D)

B. The Tenth Circuit's errors were not

harmless.

C. The Tenth Circuit has again created

conflict with the other Circuits.

VII. CONCLUSION AND PRAYER FOR

RELIEF

CERTIFICATE OF COMPLIANCE

LIST OF APPENDICES

A-l

INDEX OF APPENDICES

Page

APPX1

February 19, 2019. Decision

and Order Granting Summary

Decision. Office of

Administrative Law Judges

A-4

APPX2

December 16, 2020. Decision

and Order Administrative

Review Board. Department of

Labor.

A-125

APPX3

February 4, 2021. Order

Denying Reconsideration.

Administrative Review Board.

Department of Labor.

A-132

APPX4

April 28, 2022. Order and

Judgment, Onysko v. Martin

J. Walsh, Secretary of Labor,

Administrative Review Board,

United States Department of

Labor. Tenth Circuit Court of

Appeals.

A-140

INDEX OF APPENDICES (CONT’D)

Page

APPX5

June 15, 2022. Order Denying

Rehearing. Steven Onysko v.

Martin J. Walsh, Secretary of

Labor, et al., Tenth Circuit

Court of Appeals.

A-155

APPX6

June 23, 2022. Decision

Issuance. 21-9529,21-9530,

Onysko v. Walsh, et al.

Tenth Circuit Court of

Appeals.

A-157

APPX7

29 CFR § 24.100, Purpose and

Scope

A-160

APPX8

29 CFR § 24.104, Investigation, A-163

§§ 24.104 (e)(l)-(4)

APPX9

29 CFR § 18.72, Summary

Decision

A-167

APPX 10

Fed. R. Civ. Proc., 56,

Summary Judgment

A-174

APPX 11

29 CFR § 18.11, Definitions

A-181

APPX 12

29 CFR § 18.81, Formal

Hearing

A-183

XI1

INDEX OF APPENDICES (CONT'D)

Page

APPX 13

5 U.S, Code § 706

Administrative Procedure Act

A-186

APPX 14

ALJ April 10, 2018, Order on

Telephonic Conference

A-189

Xlll

TABLE OF AUTHORITIES

Page

Cases

Aleutian Capital Partners, LLC v. Scalia,

975 F.3d 220 (2nd Cir. 2020).

Anderson v. U.S. Dep't of Labor,

422 F.3d 1155, 1173 (10th Cir. 2005).

15, 17, 30

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986).

9, 10

Brousil v. U.S. Dept, of Labor, ARB,

(2021) (7th Cir. 2021).

17,28

Calcutt u. FDIC,

37 F.4th 293 (6th Cir. 2022).

22, 23, 24

Celotex Corp. u. Catrett,

477 U.S. 317, 322 (1986).

Chippewa Dialysis Servs. v. Leavitt,

511 F.3d 172, 176 (D.C. Cir. 2007).

Clean Harbors Envtl. Seru., Inc. v. Herman,

46 F.3d 12, 19 (1st Cir. 1998).

xiv

TABLE OF AUTHORITIES (CONTD)

Page

Cases (Cont'd)

Doyle v. United States Sec'y of Labor,

285 F.3d 243, 249 (3rd Cir. 2002).

Elgin Nursing and Rehab, v. U.S. Dept,

of Health,

718 F.3d 488 (5th Cir. 2013).

Hall v. U.S. Department of Labor

476 F.3d 847, 850 (10th Cir. 2007).

Passim

Hasan v. U.S. Dept, of Labor,

2008 (3rd Cir. 2008).

Horne v. Flores,

557 U.S. 433 (2009)

In re Owsley,

384 B.R. 739, 748 Bankr.N.D. Tex. 2008.

In re Pacific Lumber Company, LLC,

584 F.3d 229 (2009) (5th Cir. 2009).

Kaufman v. Perez,

745 F.3d 521 (D.C. Cir. 2014).

TABLE OF AUTHORITIES (CONT’D)

Page

Cases (Cont'd)

Lawson v. FMRLLC,

571 U.S. at 437, 134 S.Ct. 1158.

Leiua v. ARB, U.S. Dept, of Labor,

(5th Cir. 2020).

Matsushita Elec. Industrial Co. v. Zenith

Radio Corp.,

475 US 574 (1986).

Matter of Briscoe Enterprises, Ltd., II,

994 F.2d 1160 (5th Cir, 1993)

Maverick Transp., LLC v. U.S. Department

of Labor,

739 F.3d 1149, 1153 (8th Cir. 2014).

Motor Vehicle Mfrs. Ass'n of U.S., Inc.,

v. State Farm Mut. Auto. Ins. Co.,

12, 18, 19

463 U.S. 29 (1983).

McLeod v. Nagle,

48 F.2d 189, 191 (9th Cir. 1931).

xvi

TABLE OF AUTHORITIES (CONT’D)

Page

Cases (Cont'd)

Northrop Grumman Systems v. U.S.

Dept, of Labor,

927 F.3d 226 (4th Cir. 2019).

Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133 (2000).

Roadway Exp., Inc. v. U.S. Department

of Labor

612 F.3d 660, 664 (7th Cir. 2010).

28, 29, 32

Seuring v. Delta Airlines, Inc.,

(9th Cir., 2020.

Shinseki v. Sanders,

556 U.S. 396 (2009).

Southwestern Pa. Growth Alliance

v. Browner,

121 F.3d 106, 111 (3rd Cir. 1997).

Stone & Webster Const., Inc. v. U.S.

Dep't of Labor,

684 F.3d 1127, 1132 (11th Cir. 2012).

xvu

TABLE OF AUTHORITIES (CONT’D)

Page

Cases (Cont'd)

Texas v. United States,

(2022) (5th Cir. 2022).

12, 19

Trimmer v. U.S. Department of Labor,

174 F.3d 1098, 1102 (10th Cir. 1999).

14, 25

United States v. Rigas,

605 F.3d 194 (2010) (3rd Cir. 2010).

Welch v. Chao,

536 F.3d 269, 275-76 (4th Cir. 2008).

Wilson v. Comm'r of Soc. Sec.,

378 F.3d 541, 547, (6th Cir. 2004).

23, 24

Rules

Fed. R. Civ. P. 56, Summary Judgment

XV1U

TABLE OF INITIALIZATIONS AND

ACRONYMS

ALJ

Administrative Law Judge

APA

Administrative Procedures Act

ARB

Administrative Review Board

CAA

Clean Air Act

CERCLA

Comprehensive Environmental

Response, Compensation,

and Liability Act

CFR

Code of Federal Regulations

CWA

Clean Water Act (Water Pollution

Control Act)

EPA

U.S. Environmental Protection

Agency

ERA

Energy Reorganization Act

FRCP

Federal Rule of Civil Procedure

OALJ

Office of Administrative Law Judges

OSHA

Occupational Safety and Health

Administration

SDWA

Safe Drinking Water Act

xix

TABLE OF INITIALIZATIONS AND

ACRONYMS (CONT’D)

STA

Surface Transportation Assistance

Act

SWDA

Solid Waste Disposal Act

TSCA

Toxic Substances Control Act

u.s.c

United States Code

■ff

I. PETITION FOR WRIT OF CERTIORARI

Steven Onysko petitions the Court for a

Writ of Certiorari to the United States Court of

Appeals for the Tenth District for this Court’s

review on certiorari of the judgment of the United

States Court of Appeals for the Tenth Circuit,

Steven Onysko, Petitioner, v. Martin J. Walsh,

Secretary of Labor, Administrative Review Board,

United States Department of Labor, Respondents.

Docket Nos. 21-9529, 21-9530,

II. OPINIONS BELOW

• Steven Onysko, Complainant, v. State of Utah,

Department of Environmental Quality, ALJ Case

Nos. 2017-SDW-00002, 2018-SDW-00003, Office

of Administrative Law Judges, ALJ's Decision and

Order, Granting Summary Decision, Judgment

entered February 19, 2019. [Appendix 1, p. A-4].

• Steven Onysko, Complainant, v. State of Utah,

Department of Environmental Quality, ARB

Case No. 2019-0042, ALJ Case Nos. 2017-SDW00002, 2018-SDW-00003, Decision and Order.

Administrative Review Board. Judgment entered

December 16, 2020. [Appendix 2, p. A-125].

• Steven Onysko, Complainant, v. State of Utah,

Department of Environmental Quality, ARB Case

No. 2019-0042, ALJ Case Nos. 2017-SDW-00002,

2018-SDW-00003, Order Denying Reconsideration,

Administrative Review Board. Judgment entered

February 4, 2021. [Appendix 3, p. A-132].

• Onysko v. Martin J. Walsh, Secretary of Labor,

Administrative Review Board, United States

Department of Labor, Order and Judgment,

Tenth Circuit' Court of Appeals. Docket Nos.

21-9529, 21-9530. Judgment entered April 28,

2022. [Appendix 4, p. A-140].

• Onysko v. Martin J. Walsh, Secretary of Labor,

Administrative Review Board, United States

Department of Labor, Order Denying Rehearing,

Tenth Circuit Court of Appeals. Docket Nos.

21-9529, 21-9530. Judgment entered June 15,

2022. [Appendix 5, p. A-155].

• Onysko v. Martin J. Walsh, Secretary of Labor,

Administrative Review Board, United States

Department of Labor, Decision Issuance. Tenth

Circuit Court of Appeals. Docket Nos. 21-9529,

21-9530. Judgment entered June 23, 2022.

[Appendix 6, p. A-157].

III. JURISDICTION

The Tenth Circuit entered judgment on

June 23, 2022 [Appendix 6, p. A-157; Docket Nos.

21-9529, 21-9530). This Petition is timely filed

pursuant to Supreme Court Rule 13.1. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

IV. STATUTORY PROVISIONS INVOLVED

5 U.S. Code

5 U.S. Code Chapter 5 - Administrative

Procedure

5 U.S. Code § 500 et seq. Administrative

Procedures Act

5 U.S. Code § 554 - Adjudications

5 U.S. Code Chapter 7 - Judicial Review

5 U.S. Code. § 706(1) Scope of Review

42 U.S. Code

42 U.S. Code Chapter 6A - Public Health Service

42 U.S. Code Subchapter XII - Safety of Public

Water Systems

42 U.S. Code Part E - General Provisions

42 U.S.C. § 300j-9 General Provisions

42 U.S.C. § 300j-9(i) Discrimination Prohibition

42 U.S.C. § 300j-9(i)(3)(A)

STATEMENT OF THE CASE

Statement of the issues

Whether or not the Tenth Circuit, in its

42 U.S.C.§ 300j-9(i)(3)(A) SDWA employee

protections duties in this matter ("Any person

adversely affected or aggrieved by an order

issued under paragraph (2) may obtain review

of the order in the United States Court of

Appeals for the circuit in which the violation,

with respect to which the order was issued,

allegedly occurred.) applied the wrong

standards of review.

Whether or not the Tenth Circuit, in its

42 U.S.C. § 300j-9(i)(3)(A) SDWA employee

protections duties in this matter ("Any person

adversely affected or aggrieved by an order

issued under paragraph (2) may obtain review

of the order in the United States Court of

Appeals for the circuit in which the violation,

with respect to which the order was issued,

allegedly occurred"), should have applied each

and every one of the following standards of

review: 5 U.S. Code § 706(2)(A), § 706(2)(B),

§ 706(2)(C), § 706(2)(D), § 706(2)(E), and

§ 706(2)((F), and § 706(2) coda, instead of

only applying § 706(2)(A), and § 706(2)(E).

Nature and course of the proceedings.

This case arises under the 42 U.S.C.

§ 300j-9(i)(3)(A) employee protection provisions of

the Safe Drinking Water Act (SDWA) 42 U.S.C.

§ 300j-9 et seq. Onysko filed complaints of

employee discrimination by the Utah Department

of Environmental Quality (DEQ) through the U.S.

Department of Labor Secretary, and the Secretary’s

designee, Occupational Health and Safety

Administration (OSHA), in accordance with

42 U.S.C. 300j-9(i)(2)(A), and 29 C.F.R. 24.103(d)(1).

The Secretary of Labor dismissed Onysko’s

U.S. Occupational Safety and Health

Administration (OSHA) complaint. Onysko

successfully petitioned the Office of Administrative

Law Judges (OALJ) for CFR 24.104, Investigations,

[Appx. 8, p. A-163] investigation commencement.

An Administrative Law Judge (ALJ) dismissed

Onysko's claims in granting 29 CFR § 18.72,

Summary Decision [Appx. 9, p, A-167], summary

summary decision for Respondent DEQ [Appx. 1,

p. A-4].

Onysko petitioned the Administrative Review

Board (ARB) for review of the ALJ Decision and

Order granting summary decision. The ARB

affirmed [Appx. 2, p. A-125] the ALJ's granting

of summary decision. Onysko then petitioned

the ARB with Petition for Reconsideration. The

ARB denied [Appx. 3, p. A-132] the Petition.

Onysko appealed the ARB Decision and

Order [Appx. 2, p. A-125], and the Order Denying

Reconsideration [Appx. 3, p. A-132] to the Tenth

Circuit Court of Appeals, which assigned Case

Nos. 21-9529, and 21-9530, respectively. The Tenth

Circuit consolidated the cases for briefing and

argument in an Order entered on April 22, 2021.

In single Order and Judgment, the Tenth Circuit

denied Onysko's appeals [Appx. 4, p. A-140].

Onysko petitioned for panel rehearing. The Tenth

Circuit denied the petition [Appx. 5, p. A-155].

C. Onysko’s whistleblower complaint’s merits

are not what the Petition is about.

Onysko's whistle blower complaint was

dismissed at summary dismissal, pursuant to CFR

29 Chapter 7, Disposition without a Hearing

(§§ 18.70 - 18.72), including § 18.72, Summary

Decision. The OALJ never conducted any hearing

that rose to 5 U.S. Code § 706(2)(E) "agency

hearing provided by statute." This case is about

the Tenth Circuit’s applying the wrong Standard of

Review to review the ARB's Decision and Order

affirming the ALJ's granting of summary decision

to dismiss Onysko's whistleblower complaint

without a hearing. Onysko was never accorded due

process of the right to testify under oath, the right

to present and examine witnesses, and the right to

!»

be heard in a meaningful manner.

This Petition is not about the merits of

Onysko's whistleblower complaint. It is about the

Tenth Circuit wrongly reviewing the merits of

Onysko's whistleblower claims instead of reviewing

the ARB's affirmation of Onysko's non-survival of

ALJ summary decision. The Tenth Circuit applied

the wrong Standard of Review. The Tenth Circuit's

Order and Judgment reviewed the wrong case.

The Tenth Circuit reviewed ARB-affirmed ALJ

decision and order without a 29 C.F.R. § 24.104

ALJ investigative hearing, which never occurred.

Instead, the ALJ with aforethought at summary

decision made unlawful rulings relying on

unlawful ALJ evidence weighing, and unlawful ALJ

credibility determinations, including unlawful

disregard of Onysko's non-movant affidavit. The

Tenth Circuit expressly affirmed that Onysko did

not suffer hostile work environment, and expressly

affirmed Onysko's employer's affirmative defense.

Both of these are findings that seminal Supreme

Court cases hold are unlawful at summary decision.

" [T]e standard for granting summary

judgment 'mirrors' the standard for

judgment as a matter of law, such that

'the inquiry under each is the same.’

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250-251 (1986); see also Celotex

(1986). It therefore follows that, in

entertaining a motion for judgment

as a matter of law, the court should

review all of the evidence in the

record. In doing so, however, the court

must draw all reasonable inferences

in favor of the nonmoving party, and

it may not make credibility

determinations or weigh the evidence,

f ]. Liberty Lobby, Inc., supra."

Reeves v. Sanderson Plumbing

Products, Inc. 530 U.S. 133 (2000).

D. Statement of Facts

1, The Tenth Circuit Order and Judgment never

mentions 5 U.S.C. § 706(2)(B) standard of review.

2. The Tenth Circuit Order and Judgment never

mentions 5 U.S.C. § 706(2)(C) standard of review.

3. The Tenth Circuit Order and Judgment never

mentions 5 U.S.C. § 706(2)(D) standard of review.

4. The Tenth Circuit Order and Judgment never

mentions 5 U.S.C. § 706(2)(F) standard of review.

5. The Tenth Circuit Order and Judgment never

mentions 5 U.S.C. § 706(2) coda standard of

review.

E. Summary of Argument

Petitioner petitions for certiorari so that

this Court may make determination if the Tenth

Circuit applied the wrong Standard of Review to

its review of the ARB affirmation of the ALJ’s

granting of summary decision. That is the purview

of this Court. Matsushita Elec. Industrial Co.

v. Zenith Radio Corp., 475 US 574, 1986. ("[W]e

review only the standard applied by the Court of

Appeals in deciding this case[.]"). Petitioner's

argument can be summarized as follows.

1. In Order and Judgment, the Tenth Circuit

applied wrong Standard of Review premised on the

misinterpretation at Hall that 5 U.S. Code

§ 706(2)(A) is the only standard of review that a

Circuit Court shall apply to determine if an agency

order should be set aside. Hall v. U.S. Department

of Labor, 476 F.3d 847, 850 (10th Cir. 2007).

("[T]he Court will reverse the Final Order only if it

is ' arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law.' 5 U.S.C.

§ 706(2)(A)."). [Emphasis added.]. [SeeAppx. 4,

p. A-148]. [See argument herein at Section VI.A.2.].

2. In Order and Judgment, the Tenth Circuit

applied wrong Standard of Review, namely, a

misinterpreted 5 U.S. Code § 706(2)(A) standard of

review. The Tenth Circuit wrongly interpreted that

standard of review. Then the Tenth Circuit applied

that wrong standard of review, to justify the Tenth

Circuit's looking beyond the two-page ARB Decision

and Order itself to judge whether or not that

two-page Order should be set aside for its being

"arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law." 5 U.S. Code

§ 706(2)(A). [App. 13, p. A-187]. "An agency's action

must be upheld, if at all, on the basis articulated by the

agency itselff.] Motor Vehicle Mfrs. Ass'nofU.S., Inc., v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)." Texas

v. United States, (2022) (5th Cir. 2022). [See argument

herein at Section VLA.3.]. The Tenth Circuit

applied wrong Standard of Review, and wrongly

applied it far afield of the ARB two-page decision.

3. In Order and Judgment, the Tenth Circuit

applied wrong standard of review, 5 U.S. Code

§ 706(2)(E) [App. 13, p. A-187], which is wrong/

inapplicable test for whether or not an agency

order has supporting substantial evidence in the

record of "an agency hearing provided by statute."

Here, summary decision was granted by the ALJ

without Onysko ever having been accorded an

agency hearing provided by statute. Shame on the

Tenth Circuit for finding supporting evidence in

nonexistent record from a nonexistent "agency

hearing provided by statute." [See argument herein

at Section VT.A.4].

4. The Tenth Circuit's application of a Standard of

Review that does not include four of the six specific

5 U.S. Code § 706(2) standards of review—missing

are § 706(2)(B), § 706(2)(C), § 706(2)(D), and

§ 706(2)(F), as well as § 706(2) coda—rises to Tenth

Circuit application of wrong Standard of Review.

[See argument herein at Section VLA.5J.

5. The 5 U.S. Code § 706(2) coda is de facto required

seventh standard of review at 5 U.S. Code § 706(2).

("In making the foregoing determinations, the

court shall review the whole record or those parts of

it cited by a party, and due account shall be taken of

the rule of prejudicial error."). The Tenth Circuit's

application of Standard of Review that does not

include § 706(2) coda rises to Tenth Circuit

application of wrong Standard of Review. [See

argument herein at Section VLB.].

For these various reasons, this Court should

grant certiorari and make warranted determination

that the Tenth Circuit applied wrong Standard of

Review in the Tenth Circuit's review of ARB Order

affirming the ALJ's granting of summary decision to

dismiss Onysko's SDWA whistleblower complaints.

VI.

REASONS FOR GRANTING THE WRIT

A. The Tenth Circuit applied wrong Standard

of Review [.Appx. 4, p. A-148].

A.l The Tenth Circuit’s articulated Standard

of Review [Appx. 4, p. A-148].

The Tenth Circuit's Order and Judgment

articulated the wrong standard of review—

expressly identifying only one relevant standard of

review from 5 U.S.C. § 706(2)(A)-(F), and identifying

nonsensical § 706(2)(E), given that Onysko was

never accorded "agency hearing provided by statute."

" We review the Board's final decision

and order under the Administrative

Procedure Act (APA), 5 U.S.C. § 706.

Under the APA, we must sustain the

Board's decision unless it is arbitrary,

capricious, an abuse of discretion, or

otherwise not in accordance with the

law," or "unsupported by substantial

evidence." § 706(2)(A), (E), see Hall v.

U.S. Dep't of Lab., 476 F.3d 847, 850

(10th Cir. 2007) (same). We review

the Board's legal determinations de

novo. Trimmer v. U.S. Dep't of Lab.,

174 F.3d 1098, 1102 (10th Cir.1999)."

A.2 Wrong Standard of Review: Hall v.

U.S. Department of Labor, 476 F.3d 847,

850 (10th Cir.2007).

" We review the ARB’s decision under

the standard established by the

Administrative Procedure Act, 5

U.S.C. §§ 701-06. See Anderson u.

U.S. Dep't of Labor, 422 F.3d 1155,

1173 (10th Cir.2005). Thus, the

Court will reverse the Final

Order only if it is ’ arbitrary,

capricious, an abuse of

discretion, or otherwise not in

accordance with the law.’

5 U.S.C. § 706(2)(A)." Hall v. U.S.

Department of Labor, 476 F.3d 847,

850 (10th Cir. 2007). [Emphasis

added.].

Well-settled rules of construction persuade

that the six 5 U.S. Code § 706(2)(A)-(F) provisions

are independent clauses,!1]. [2] each describing an

alternative, stand-alone cause for the Circuits to set

aside an agency order.

M " Clauses separated by a semicolon 'are presumed to be

independent clauses.' In re Owsley, 384 B.R. 739, 748

(Bankr.,N.D. Tex. 2008); see also McLeod v. Nagle, 48 F.2d 189,

191 (9th Cir.1931)." Elgin Nursing and Rehab, v. U.S. Dept, of

Health, 718 F.3d 488 (2013) (5th Cir. 2013).

Hall (Supra) wrongly interprets 5 U.S. Code

§ 706(2)(A)-(F) to mean that so long as an agency

order does not exhibit all six agency order defects,

§ 706(2)(A)-(F), the Circuit Court must sustain the

agency order. Per the faulty reasoning at Hall

(Supra), an agency order which exhibits defects at

as many as all other five standards § 706(2)(B)-(F),

should still be sustained by the Courts because at

least § 706(2)(A) defect is absent. Hall's Standard

of Review is nonsensical, i.e., one standard survived

makes for an agency order's survival regardless of

non-survival of any of the other 5 standards. But

the § 706(2)(A)-(F) independent clauses should be

be interpreted consistent with how courts interpret

statutes with similarly independent clauses of relief,

choices, or even crimes, joined by the disjunctive

"or," 13],[4] These precedents convince that Hall

[2] "Use of the disjunctive 'or' makes it clear that each of the

provision’s three grounds for relief is independently sufficient

[.]" Horne v. Flores, 557 U.S. 433 (2009).

131 "This court has subscribed to the obvious proposition that because the

three subsections of [Bankruptcy Code, 11 U.S. Code] § 1129(b)(2)(A)

are joined by the disjunctive 'or,' they are alternatives. Matter of Briscoe

Enterprises, Ltd.,II, 994 F.2d 1160 (1993) (5th Cir, 1993). In re Pacific

Lumber Company, LLC, 584 F.3d 229 (2009) (5th Cir. 2009).

14] "When Congress crafts a statute to create distinct offenses,

it typically utilizes multiple subsections or separates clauses

with semicolons to enumerate the separate crimes." United

States v. Rigas, 605 F.3d 194 (2010) (3rd Cir. 2010).

(Supra) is error, and that correct interpretation

is, "even one strike at 5 U.S. Code § 706(2)(A)-(F)

and the Order is out," for a challenged agency order.

For decades, most Circuits, including the

Tenth Circuit, have perverted 5 U.S. Code

706(2)(A)-(F) to mean that any agency order passing

just single 5 U.S. Code 706(2)(A)—(i.e., the agency

order is not found "arbitrary or capricious"—shall

be sustained by the Circuit Court. Not a single

Circuit has precedent citing to 5 U.S. Code

706(2)(B), (D), or (F). The Circuits' sustaining of

agency orders for passing merely 706(2)(A)

standard of review, with no consideration of the

orders' failing at 5 U.S. Code 706(2)(B), (C), (D), (E),

or (F), is contrary to Congress's intent.

In the matter at hand, the Tenth Circuit for

second time ever {see also Anderson (2005, Infra))

did look to § 706(2)(E) but ironically in error (i.e.,

the Tenth Circuit shamefully purported to find

supporting evidence for the ARB Order in the

record of a hearing that never occurred). The

silver lining is that the Tenth Circuit again joins

—albeit erroneously—the Seventh Circuit (see

Brousil, 7th. Cir. 2021, Infra) in conflict with other

Circuits that never look to § 706(2)(E), which newly

begs again this Court's resolution of the conflict.

A.3 Wrong Standard of Review: When it

applied standard of review U.S. Code

§ 706(2)(A) (i.e., arbitrariness, or

capriciousness, or abuse of discretion, in

agency order), the Tenth Circuit looked

beyond the ARB’s Orders.

The Tenth Circuit's Judgment and Order

Standard of Review [Appx. 4, p. A-148] identifies

5 U.S. Code § 706(2)(A). This standard of review

requires that the reviewing court shall set aside

agency action found to be, "arbitrary, capricious,

an abuse of discretion, or otherwise not in

accordance with law[.]"

The ARB Decision and Order [Appx. 2, p.

A-125] is less than two pages, and contains mere

559 words at discussion and two footnotes. The

Secretary's response brief (not exhibited) to the

Tenth Circuit has 23 pages of discussion and

contains 11,600 words. The Tenth Circuit's Order

and Judgment has 10 pages with 2600 words of

discussion and findings.

Motor Vehicle Mfrs., {Infra) is dispositive that

the ARB's Order, if upheld at all by the Tenth

Circuit, had to be upheld on the basis of only the 559

words at that Order. Instead, it was wrongly upheld

with Tenth Circuits citations to the a priori

rationalizations in the 56-page, 22,000-word, ALJ

Decision and Order, and to the ad hoc

rationalizations in the Secretary's brief.

"Courts are compelled to 'hold

unlawful and set aside agency

action[s]' that are 'arbitrary,

capricious, an abuse of discretion,

or otherwise not in accordance with

law.' 5 U.S.C. § 706(2). 'An agency's

action must be upheld, if at all, on

the basis articulated by the agency

itself[.]' Motor Vehicle Mfrs. Ass'n of

U.S., Inc. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29 (1983)." Texas v.

United States, (2022) (5th Cir. 2022).

The Tenth Circuit applied a wrong standard

of review that perverted the correct standard of

review. The 559-word ARB Order by itself should

not have survived Tenth Circuit correctly applied

5 U.S. Code § 706(2)(A) standard of review. It is

indisputable that the Tenth Circuit's Order and

Judgment blatantly relies upon the ALJ's Decision

and Order, and on the Secretary's briefing to the

Tenth Circuit, to absolve the naked ARB Order

of § 70,6(2)(A) arbitrariness and capriciousness.

The indisputability lies in the two-page

ARB's Order content—specifically, it's lack of

content. The two-page ARB Order is not the

source of the Tenth Circuit Order and Judgment's

extensive content on the purported failed merits of

Petitioner's whistleblower complaint. For example,

the Tenth Circuit wrongfully looked beyond the

ARB's Order to the ALJ's Decision and Order for

the issue of Onysko's 2007 whistleblower complaint,

which the 559-word ARB order never mentioned.

The Tenth Circuit credited the ARB Order for not

being arbitrary and capricious because somebody

else—the ALJ—provided background that the ARB

Order did not. That proves ARB Order failure at

5 U.S. Code § 706(2)(A).

A.4 Wrong Standard of Review: Tenth Circuit

5 U.S. Code § 706(2)((E) nonsensical finding of

supporting substantial evidence in phantom

agency hearing record given that no hearing

was held and no record exists.

The Tenth Circuit in its applied Standard of

Review [Appx. 4, p. A-148] applied wrong standard

of review in applying standard of review at 5 U.S.

Code § 706(2)(E). None of the provision's conditions

for relevant application are present in this matter.

(" [ ] in a case subject to sections 556 and 557 of this

title or otherwise reviewed on the record of an

agency hearing provided by statute; "). Neither

referenced 5 U.S. Code § 556, or § 557, is applicable

here in this matter. And, there has been no "agency

"hearing provided by statute" in this matter. No

29 CFR § 24.104 OALJ hearing ever took place.

!■

Onysko was never accorded 29 CFR § 24.104,

OALJ hearing. [See App. 12, p. A-183, 29 CFR

§ 18.81, Formal Hearing]. The ALJ's summary

decision was not an "agency hearing provided by

statute." 5 U.S, Code § 706(2)(E). The Tenth Circuit

applied wrong standard of review in applying

§ 706(2)(E). Representation by the Tenth Circuit

that it found supporting substantial evidence in a

hearing record that does not even exist is shameful.

The Tenth Circuit was appallingly oblivious that

its duty was to review ARB affirmation of ALJ

summary decision, not ARB affirmation of ALJ

findings from nonexistent ALJ hearing on the

merits of Onysko's whistleblower claims.

A.5 Wrong Standard of Review: Absence of

5 U.S. Code § 706(2) standards of review:

§ 706(2)((B), <C), <D), and (F), missing.

The Tenth Circuit's applied Standard of

Review wrongly omitting standards of review 5 U.S.

Code § 706(2)(B), § 706(2)(C), § 706(2)(D), and

§ 706(2)(F). In omitting these standards of review

from its Standard of Review, the Tenth Circuit

applied wrong Standard of Review.

Standards of Review 5 U.S. Code § 706(2)(A)-(F)

constitute six stand-alone, separate, alternative

bases upon which the ARB Orders could have been

necessarily set-aside by the Tenth Circuit for any

single failed standard. The Tenth Circuit wrongfully

failed to review if the ARB Order was contrary to

constitutional right, power, privilege, or immunity,

(§ 706(2)(B)); was in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right

(§ 706(2)(C)); was without observance of procedure

that is required by law (§ 706(2)(D)); or was

unwarranted by the facts to the extent that the facts

are subject to trial de novo by the reviewing court

(§ 706(2)(F)). [See 5 U.S.C. 706(2) at Appx.13,

p. A-186].

It is not credible that the 559-word, two-page,

stand-alone, ARB Order had sufficient content to

survive review pursuant to the four 5 U.S. Code

§ 706(2) standards which the Tenth Circuit failed to

apply. Failed application of required standards of

review is tantamount to application of wrong

Standard of Review.

B. The Tenth Circuit’s errors were not harmless.

The coda to 5 U.S. Code § 706(2) is de facto

seventh standard of review at U.S. Code § 706(2),

Scope of Review. The coda states, "In making the

foregoing determinations, the court shall review the

whole record or those parts of it cited by a party,

and due account shall be taken of the rule of

prejudicial error." Calcutt (Infra) explains the

meaning of the coda.

" This language applies the federal

harmless-error standard from civil

cases. See Shinseki v. Sanders,

556 U.S. 396 (2009). We employ

a ' case-specific application of

judgment, based upon examination

of the record,' id. at 407, 129 S.Ct.

1696, to determine whether the

error 'affect[ed] the substantial

rights of the parties,' 28 U.S.C.

§2111. An error is not harmless

when, for example, an agency

violates its own procedural rules

and the petitioner shows that he

'has been prejudiced on the merits

or deprived of substantial rights

because of the agency's procedural

lapses.' Wilson v. Comm'r of Soc.

Sec., 378 F.3d 541, 547 (6th Cir.

2004) (quotation marks, emphasis

omitted)." Calcutt v. FD1C, 37

F.4th 293 (2022) (6th Cir. 2022).

In the matter at hand, the ARB violated its

own procedural rules at 29 CFR § 18.72, Summary

Decision [App. 9, p. A-167], and the rule governing

its resolution of any uncertainty as to interpretation

of 29 CFR § 18.72, namely 29 CFR §18.1, Scope of

Rules, § 18.1a:

"(a) General application. These

rules of practice are generally

applicable to adjudicatory

proceedings before the Office of

Administrative Law Judges, United

States Department of Labor. [ ].

The Rules of Civil Procedure for

the District Courts of the United

States shall be applied in any

situation not provided for or

controlled by these rules, or by

any statute, executive order or

regulation." [Emphasis added].

Not once in the ARB Orders did the ARB

follow 29 CFR §18.1(a) procedural rule to look to

the Federal Rules of Civil Procedure, e.g., Fed.

R. Civ. Proc., 56, Summary Judgment, [App. 10,

p. A-174] to resolve situation not provided for, or

controlled by, 29 CFR § 18.72, Summary Decision.

[App. 9, p.A-167]. The Tenth Circuit's wrong

standard of review that countenanced ARB violation

of ARB's own procedural rules was not harmless

Tenth Circuit error. Calcutt (Supra). Onysko was

deprived of substantial rights, first by the ALJ, and

then the ARB, and now the Tenth Circuit for its

applied wrong Standard of Review omitting 5 U.S.

Code § 706(2) coda, and countenancing ARB's

procedural lapses. Wilson (Supra),

C. The Tenth Circuit has again created

conflict with the other Circuits.

Petitioner does not dismiss the Tenth Circuit

Order and Judgment's Standard of Review as

simply careless articulation. [Appx. 4, p. A-148].

"We review the Board's final decision

and order under the Administrative

Procedure Act (APA), 5 U.S.C. § 706.

Under the APA, we must sustain

the Board's decision unless it is '

'arbitrary, capricious, an abuse

of discretion, or otherwise not in

accordance with the law,' or

'unsupported by substantial

evidence.' § 706(2)(A), (E), see Hall

v. U.S. Dep't of Lab., 476 F.3d 847,

850 (10th Cir. 2007) (same). We

review the Board's legal

determinations de novo. Trimmer v.

U.S. Dep’t of Lab., 174 F.3d 098, 1102

(10th Cir.1999)."

Rather, Petitioner notes that there is real conflict

among the Circuits as to how many "land mines" an

agency order must navigate in any given Circuit's

articulated "minefield" of 5 U.S. Code § 706(2)(A)-(F),

plus § 706(2) coda, Standard of Review.

Eight Circuits flat-out erroneously hold that

5. U.S. Code § 706(2)(A) is the only standard of

review at U.S. Code § 706(2)(A)-(F) that a Circuit

Court shall apply to set aside, or not, an agency

order. No whistleblower can ever receive fair and

impartial treatment in these Circuits. [See below,

Cir. 3, 4, 5, 7, 8, 9, 10, and 11.] The Circuits are

wrong. [See case holdings below, Cir. 1, 2, 6, D.C.].

”We will overturn the ARB's

decision only if it is 'arbitrary,

capricious, an abuse of discretion,

or otherwise not in accordance

with the law.' 5 U.S.C. § 706(2)(A).

Doyle v. United States Sec'y of Labor,

285 F.3d 243, 249 (2002) (3d Cir. 2002)."

Hasan a U.S. Dept, of Labor, 2008 (3rd

Cir. 2008). [Emphasis added.].

"A reviewing court may overturn a

decision of the Secretary only if it is

"arbitrary, capricious, an abuse of

discretion, or otherwise not in

accordance with the law." 5 U.S.C.

§ 706(2)(A);t6] see Southwestern Pa.

Growth Alliance u. Browner, 121 F.3d

106, 111 (1997) (3d Cir. 1997)." Doyle u.

U.S. Sec'y of Labor, 285 F.3d 243, 249

(3rd Cir. 2002). [Emphasis added].

"The ARB's determinations are "the

agency's final decision and [are]

reviewable in federal court under the

standards stated in the Administrative

Procedure Act, 5 U.S.C. § 706." Lawson

v. FMRLLC, 571 U.S. at 437, 134 S.Ct.

1158. Under the Administrative

Procedure Act, an appellate court

’may only disturb the ARB’s

decision if it was 'arbitrary,

capricious, an abuse of discretion,

or otherwise not in accordance with

law.' Welch v. Chao, 536 F.3d 269 (2008)

(4th Cir. 2008), at 275-76 (quoting 5

U.S.C. § 706(2)(A))." Northrop

Grumman Systems v. U.S. Dept, of

Labor, 927 F.3d 226 (2019) (4th Cir.

2019). [Emphasis added.].

"Under the Administrative Procedure

Act, 5 U.S.C. § 706(2)(A) (2006) — which

governs our review here, see 49 U.S.C.

§ 42121(b)(4)(A) — we may only

disturb the ARB's decision if it was

"arbitrary, capricious, an abuse of

discretion, or otherwise not in

accordance with law." Welch v. Chao,

536 F.3d 269 (2008) (4th Cir. 2008).

[Emphasis added.].

"We will sustain the ARB's decision

unless it was 'arbitrary, capricious,

an abuse of discretion, or otherwise

not in accordance with law.' 5 U.S.C.

§ 706(2)(A).” Leiva v. ARB, U.S. Dept,

of Labor, (2020) (5th Cir. 2020),

[Emphasis added.].

"We review the ARB’s decision

under the Administrative

Procedure Act standards in 5 U.S.C.

§ 706. 49 U.S.C. § 20109(d)(4). We will

uphold the ARB's legal conclusions

unless they are 'arbitrary,

capricious, an abuse of discretion,

or otherwise not in accordance with

law.' Roadway Exp., Inc. v. U.S. Dep't

of Lab., 612 F.3d 660, 664 (7th Cir.

2010) (quoting 5 U.S.C. § 706(2)(A)).H

Brousil v. U.S. Dept, of Labor, ARB,

(2021) (7th Cir. 2021). [Emphasis

added.].

"Our review of the ARB’s decision is

guided by the standard set forth in the

Administrative Procedure Act, 5 U.S.C.

§ 706. See 49 U.S.C. § 31105(d). We

may overturn the ARB’s legal

conclusions only if they are

’arbitrary, capricious, an abuse of

discretion, or otherwise not in

accordance with law.' 5 U.S.C.

§ 706(2)(A)." Roadway Exp., Inc. u.

U.S. Dep't of Lab., 612 F.3d 660, 664

(7th Cir. 2010), [Emphasis added].

"We review the ARB's decision under the

deferential standard articulated in the

Administrative Procedure Act, 5 U.S.C.

§ 706(2). 49 U.S.C. § 31105(d). Under

this standard we must affirm the

ARB’s conclusions of law unless the

same are arbitrary, capricious, an

abuse of discretion, or otherwise

contrary to law. 5 U.S.C. § 706(2)(A)."

Maverick Transp., LLC v. U.S. Dep't of

Labor, 739 F.3d 1149, 1153 (8th Cir.

2014). [Emphasis added].

"We may set aside the ARB’s order if

it is ’arbitrary, capricious, an abuse

of discretion, or otherwise not in

accordance with law.' 5 U.S.C.

§ 706(2)(A)." Seuring v. Delta Airlines,

Inc., (2020) (9th Cir., 2020; Not for

Publication). [Emphasis added].

"We review the ARB’s decision under the

standard established by the

Administrative Procedure Act, 5 U.S.C.

§§ 701-06. See Anderson v. U.S. Dep't of

Labor, 422 F.3d 1155, 1173 (10th Cir.

2005). Thus, the Court will reverse the

Final Order only if it is ’arbitrary,

capricious, an abuse of discretion,

or otherwise not in accordance with

the law.’ 5 U.S.C. § 706(2)(A)." Hall v.

U.S. Dep't of Labor, 476 F.3d 847, 850

(10th Cir. 2007). [Emphasis added].

’We will only overturn the ARB’s

findings if they are arbitrary,

capricious, an abuse of discretion,

or not in accordance with the law.

5 U.S.C. § 706(2)(A); Stone & Webster

Const., Inc. v. U.S. Dep't of Labor, 684

F.3d 1127, 1132 (11th Cir. 2012).

[Emphasis added].

The other Circuits' less incomplete standards of

review are wrong, too. [See case holdings below,

Cir. 1, 2, 7, D.CJ.

"We review the Board's final order

according to the standards of

the Administrative Procedure Act,

5 U.S.C. § 701 et. seq. We must affirm

the Board's decision unless its

legal conclusions are arbitrary,

capricious, or otherwise not in

accordance with law, or if its

factual findings are unsupported

by substantial evidence. See 5 U.S.C.

§ 706(2); Clean Harbors Envtl. Serv.,

Inc. v. Herman, 146 F.3d 12, 19 (1st

Cir. 1998). [Emphasis added].

"We overturn the [ARB] Agency's decision

if it is 'arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with law.' 5 U.S.C. § 706(2)(A). We set aside

the ARB's factual findings 'only if unsupported

by substantial evidence on the record as a

whole.' Chippewa Dialysis Servs. v. Leavitt,

511 F.3d 172, 176 (D.C. Cir. 2007)."

Kaufman u. Perez, 745 F.3d 521 (2014)

(D.C. Cir. 2014), [Emphasis added].

»i *

The APA requires reviewing

courts to ' hold unlawful and set

aside agency action, findings, and

conclusions found to be,' among

other things, 'arbitrary, capricious,

an abuse of discretion, or otherwise

not in accordance with law,' or 'in

excess of statutory jurisdiction,

authority, or limitations.' 5 U.S.C.

§ 706(2)(A),(C)." Aleutian Capital

Partners, LLC v. Scalia, 975 F.3d 220

(2nd Cir. 2020). [Emphasis added].

"Our review of the ARB's decision is

guided by the standard set forth in the

Administrative Procedure Act, 5 U.S.C.

§ 706. See 49 U.S.C. § 31105(d). We

may overturn the ARB's legal

conclusions only if they are "arbitrary,

capricious, an abuse of discretion, or

otherwise not in accordance with law."

5 U.S.C. § 706(2)(A). The ARB's

findings of fact must be upheld if

supported by substantial evidence.

5 U.S.C. § 706(2)(E); Roadway 1, 495

F.3d at 483 (7th Cir. 2007). ” Roadway

Exp., Inc. v. U.S. Dep't of Lab., 612 F.3d

660, 664 (7th Cir. 2010). [Emphasis

added].

VII. CONCLUSION AND PRAYER FOR

RELIEF

The Circuits need guidance as to how to

reconcile conflicts between respective precedents

establishing Standard of Review for Circuit Courts'

APA 5 U.S. Code § 706(2)(A)-(F) review of agency

order. Ideally, this Court will determine on

certiorari which standards of review are law.

In the matter at hand, it is evident [Appx. 4,

p. A-148] that the Tenth Circuit wrongly applied

standard of review 5 U.S. Code § 706(2)(E). This

standard is nonsensical in the Circuit Court at

review of agency ARB affirmation of ALJ summary

decision without hearing. The Circuit Court cannot

look for supporting substantial evidence in a hearing

record that does not exist. Summary decision is not

hearing.

The Tenth Circuit has also created confusion

as to the deference a Circuit Court should accord an

agency decision at standard of review 5 U.S. Code

§ 706(2)(A). In the matter at hand, the Tenth

Circuit accorded the ARB deference for its

interpretation of statute (SDWA) not administered

by Department of Labor. And the Tenth Circuit,

contrary to much case law, showed deference to

ARB’s interpretation of Supreme Court precedent.

In the matter at hand, it is evident that the

Tenth Circuit wrongly applied standard of review

5 U.S. Code § 706(2) in disregarding standards

at 5 U.S. Code clauses § 706(2)(B), § 706(2)(C),

§ 706(2)(D), and § 706(2)(F), and § 706(2) coda, for

the Tenth Circuit's review of the ARB Orders.

Petitioner prays that this Court grant

certiorari so it may review the Tenth Circuit's Order

and Judgment, and Order Denying Rehearing, for

application of wrong standard of review, and

consequent wrong findings of fact and wrong

conclusions of law.

Petitioner prays for relief in the form of a real

OALJ hearing on the merits of his case as redress of

the ALJ sham summary decision, after nothing but

biased telephone conference without any indicia of

due process. [Appx. 14, p. A-192, #4\.

Petitioner prays for relief from wrongful

employment termination by the Utah Department

of Environmental Quality in retaliation for SDWA

protected activities.

Petitioner prays for relief that Utah citizens

suffering ongoing public health consequences from

Utah Department of Environmental Quality's

corrupt administration of the federal Safe Drinking

Water Act, and the Utah Safe Drinking Water Act,

be delivered from evil.

Amen.

CERTIFICATE OF COMPLIANCE

STEVEN ONYSKO,

Petitioner,

MARTIN J. WALSH, SECRETARY OF LABOR

ADMINISTRATIVE REVIEW BOARD,

UNITED STATES DEPARTMENT OF LABOR

Respondents.

As required by Supreme Court Rule 33.1(h), I

certify that the petition for a writ of certiorari

contains 6,322 words, excluding the parts of the

petition that are exempted by Supreme Court

Rule 33.1(d).

I declare under penalty of perjury that the

foregoing is true and correct. Executed on this

12th day of September 2022.

LIST OF APPENDICES

Page

APPX 1

February 19, 2019. Decision

and Order Granting Summary

Decision. Office of

Administrative Law Judges

A-4

APPX 2

December 16, 2020. Decision

and Order Administrative

Review Board. Department of

Labor.

A-125

APPX 3

February 4, 2021. Order

Denying Reconsideration.

Administrative Review Board.

Department of Labor.

A-132

APPX 4

April 28, 2022. Order and

Judgment, Onysko v. Martin

J. Walsh, Secretary of Labor,

Administrative Review Board,

United States Department of

Labor. Tenth Circuit Court of

Appeals.

A-140

A-l

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.