Robert E. Tyndall,            
               Complainant,   
                              
          v.                                                   Case No. 93-CAA-6
                             
U.S. Environmental Protection 
Agency,                       
               Respondent.   


ORDER DENYING EPA'S MOTION TO DISMISS OR IN THE ALTERNATIVE
FOR SUMMARY JUDGMENT AND NOTICE OF PREHEARING CONFERENCE

                          This is a whistleblower action brought under the employee
protection provisions of the Clean Air Act ("CAA"), 42 U.S.C.
§ 7622 and the Department of Labor regulations at 29 C.F.R.
§ 24.  Complainant, Robert E. Tyndall, is a special agent,
GS-1811-13, Procurement Fraud Division, Office of Investigations,
Office of Inspector General ("OIG"), Environmental Protection
Agency ("EPA").  Complainant contends that the EPA-OIG retaliated
against him for reporting alleged official misconduct, and
alleged wrongful interference by EPA-OIG management during an
official investigation assigned to Complainant.  He asserts that
in retaliation for his alleged protected whistleblowing
activities, EPA-OIG subjected him to threats, intimidation,
harassment, physical assaults, an involuntary transfer and the
withholding of earned overtime pay and travel expenses.

     Respondent, United States Environmental Protection Agency,
has filed a Motion to Dismiss or for Summary Judgment on the
grounds that: (1) the complaint was filed in an untimely manner;
and (2) the Department of Labor ("DOL") is without jurisdiction
in this matter because (a) the Civil Service Reform Act of 1978
and the Whistleblower Protection Act of 1989 provide a narrowly
tailored preemptive and exclusive remedy for Federal employees
who allege that they have been retaliated against for
whistleblowing, and (b) the Clean Air Act and other environmental
statutes do not apply to EPA employees or to Federal employees in
general.


[PAGE 2]
I. Timeliness of Complaint

     EPA correctly states that the appropriate statute of
limitations under the Department of Labor regulations, 29 C.F.R.
§ 24.3(b), is 30 days after the occurrence of the alleged
violation, and Complainant did not file his complaint with the
DOL until March 3, 1993.[1]   While this is more than 30 days
after the directed reassignment of Complainant in November 1992,
that is not the only violation alleged.  The complaint alleged
termination of administratively uncontrollable overtime without
notification or explanation on February 16, 1993, within 30 days
of the filing of the complaint.  Complainant also asserts that
the violations are of an ongoing nature.  Specifically, he claims
a failure to provide him with a completed performance appraisal,
beginning in November 1992 and continuing through the present,
and withholding of a $3,300 travel authorization, beginning in
November 1992 and continuing until July 1993.  Where a
discriminatory act is found to be continuous, the timeliness of
the complaint is measured from the date of the last
discriminatory action, and the cause of action will encompass all
preceding discriminatory acts within that continuous course of
discriminatory conduct.  I deny the Motion for Summary Judgment
based on the timeliness because Complainant has alleged
violations within 30 days of the filing of the complaint and his
assertion that the violations were ongoing present issues of
material fact.

II. Jurisdiction of Department of Labor

     A. Civil Service Reform Act of 1978 (CSRA) and
     Whistleblower
        Protection Act of 1989 (WPA) are not Exclusive

     EPA's argument that CSRA and WPA are the exclusive remedy is
essentially one of implied repeal.  This argument has been
rejected by the Secretary, and I likewise reject it. See
Marcus v. United State Environmental Protection Agency, 92-
TSC-5, Sec. Dec., February 7, 1994, slip op. at 5. (citing Pogue
v. United States Department of Navy Mare Island Naval Shipyard,
87-ERA-21 (May 10, 1990), and Conley v. McClellan Air Force Base,
84-WPC-1 (September 7, 1993)).

     B. The CAA Does Apply to EPA Employees

     Relying on the plain language of the statute, EPA argues
that the CAA does not apply to EPA employees.  Its plain language
argument is based on the word "employee" not being defined in the
CAA and the statutory definition of "persons" covered under the 
[PAGE 3]
Act in which the United States and Federal agencies are not
mentioned.  This argument was rejected in Marcus when the
Secretary held that the CAA and other environmental statutes do
apply to EPA employees, and Federal employees in general. See
Marcus at 4-5.  The Secretary relied on Congress' concern
that federal facilities comply with all state regulations to find
that it also intended all requirements of the Federal statutes to
apply.  See Marcus at 4-5.

     I, therefore, deny EPA's motion to dismiss or in the
alternative for summary judgment, and further NOTIFY THE PARTIES
that they are to appear before the undersigned for a status
conference at 10 A.M. on April 28, 1994 in the courtroom at 800 K
Street, N.W. Suite 400.


                                        ROBERT G. MAHONY 
                                        Administrative Law Judge



Dated: March 25, 1994
Washington, D.C. 
RGM/mec




[ENDNOTES]
                
[1]  EPA's brief states that the complaint was filed on March 9,
1993 and Complainant's brief states that it was filed on March 3,
1993.  Because the post marked envelope is not in evidence, I
will use Complainant's date because it is the date on the
complaint and it is earlier.