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| September 17, 2008 DOL Home > OALJ Home > USDOL/OALJ Reporter |
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USDOL/OALJ Reporter De Melo v. U.S. Dept. of Veterans Affairs, ARB No. 03-027, ALJ No. 2002-ERA-17 (ARB June 22, 2004)
ARB CASE NO. 03-027
In the Matter of:
JOSEPH F. DE MELO,
v.
UNITED STATES DEPARTMENT
BEFORE: THE ADMINISTRATIVE REVIEW BOARD Appearances:
For the Complainant:
For the Respondent:
This is an appeal from a Recommended Decision and Order (R. D. & O.) issued pursuant to the whistleblower protection provision of the Energy Reorganization Act (ERA), 42 U.S.C.A. § 5851(b) (West 2004). The R. D. & O. recommends that the complaint be dismissed on the merits. The Complainant, Robert F. DeMelo, argues on appeal that the Recommended Decision is not supported by the record and is contrary to law. We have authority over this appeal pursuant to 29 C.F.R. § 24.8 (2004) and Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002). The R. D. & O. was issued in October 2002. DeMelo v. United States Dep't of Veterans Affairs, ALJ No. 2002-ERA-00017 (ALJ Oct. 30, 2002). In May 2003, this Board ruled that it lacks jurisdiction over § 5851(b) complaints against Federal agencies such as the Department of Veterans Affairs because Congress did not waive sovereign immunity from such claims. Pastor v. Department of Veterans Affairs, ARB No. 99-071, ALJ No. 1999-ERA-11 (ARB May 30, 2003). Therefore, Pastor requires dismissal of this complaint for lack of jurisdiction. Cf. Rivers v. Roadway Express, 511 U.S. 298, 311-312 ("judicial decisions operate retrospectively"); Bath v. NRC, ARB No. 02-041, ALJ No. 2001-ERA-41 (ARB Sept. 29, 2003) (applying Pastor to complaint filed and R. D. & O. issued before Pastor). [Page 2] Accordingly, this complaint is DISMISSED for lack of jurisdiction. SO ORDERED.
OLIVER M. TRANSUE
CYNTHIA DOUGLASS Chief Administrative Appeals Judge
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