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USDOL/OALJ Reporter Sasse v. U.S. Department of Justice, ARB No. 99-053, ALJ No. 1998-CAA-7 (ARB Aug. 31, 2000)
ARB CASE NO. 99-053 In the Matter of:
GREGORY C. SASSE,
v.
UNITED STATES DEPARTMENT
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
For the Amicus Curiae:
For the Respondent:
Gregory C. Sasse has filed a complaint alleging that his employer, Office of the United States Attorney, United States Department of Justice (DOJ), has violated the whistleblower protection provisions of the Clean Air Act (CAA), 42 U.S.C. §7622 (1994); the [Page 2] Solid Waste Disposal Act (SWDA), 42 U.S.C. §6971 (1994) and the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §1367 (1994)(collectively "the environmental statutes"). Specifically, Sasse asserts that "he has been subjected to an ongoing course of retaliatory discrimination by his DOJ supervisors because of his aggressive investigation and prosecution of environmental crimes, as well as his active promotion and participation in the Environmental Task Force." Complainant's Reply Brief at 2.
Before the Administrative Law Judge (ALJ), DOJ moved to dismiss Sasse's whistleblower complaint. DOJ argued that dismissal was appropriate based on two theories: (1) that the Labor Department lacked subject matter jurisdiction over Sasse's complaint, and (2) that Sasse had failed to state a cause of action. The ALJ denied the DOJ's motion to dismiss. With regard to DOJ's subject matter jurisdiction argument, the ALJ found:
Order Denying Respondent's Motion to Dismiss at 5. The ALJ also denied DOJ's motion to dismiss based on a failure to state a claim, stating that "the Respondent has not demonstrated that the complaint alleges facts which do not state a claim upon which relief can be granted, both as to the continuing violation theory and hostile environment claim." Id. [Page 3] DOJ subsequently filed with the ALJ a "Request for Certification Pursuant to 28 U.S.C. §1292(b)," "asking that the issue of subject matter jurisdiction be certified as a controlling question of law so that Respondent may file an interlocutory appeal to the Administrative Review Board (ARB)." Order Granting Respondent's Request for Certification at 1. The ALJ granted the request, certified the question of subject matter jurisdiction to the ARB as an interlocutory appeal and stayed the proceedings at the ALJ level.
The ARB generally disfavors interlocutory appeals resulting in piecemeal litigation of cases. Amato v. Assured Transportation and Delivery, Inc., ALJ Case No. 98- TSC-6, ARB Case No. 98-167, slip op. at 2 (Jan. 31, 2000); Hasan v. Commonwealth Edison Co., ALJ Case No. 99-ERA-17, ARB Case No.99-097, slip op. at 2 (Sept. 16, 1999); Allen v. EG &G Defense Materials, Inc., ALJ Case No. 97-SWD-8 & 10, ARB Case No. 98-073, slip op. at 2 (Sept. 28, 1998). DOJ urges the ARB to make an exception to its general rule in this case based on its claim that the Labor Department lacks jurisdiction over Sasse's complaint, arguing that
Petition for Review at 3. DOJ further asserts that "subject matter jurisdiction is a controlling issue. If it does not exist, it can never be inferred or waived. Any ruling made in the absence of subject matter jurisdiction is void ab initio and forever." Id. at 5. DOJ concludes, "The Administrative Review Board should grant respondent's interlocutory appeal and dismiss the complaint for failure to state a cause of action." Reply Brief Submitted by Respondent United States Department of Justice at 9 (emphasis supplied). Although DOJ's declaration about the significance of subject matter jurisdiction is accurate as a general statement of the law, it is inapposite in this instance because DOJ has confused the Labor Department's subject matter jurisdiction over an environmental whistleblower complaint with the wholly separate question whether Sasse's actions might be covered as "protected activities" under the environmental statutes. See Ramos v. Universal Dredging Corp., 653 F.2d 1353, 1355-1359 (9th Cir. 1981); OFCCP v. Keebler Company, ALJ Case No. 87-OFC-20, ARB Case No. 97-127, slip op. at 10 (Dec. 21, 1999). "A court is said to have jurisdiction, in the sense that its erroneous action is voidable only, not void, when the parties are properly before it, the proceeding is of a kind or class which the court is authorized to adjudicate, and the claim set forth in the paper writing invoking the court's [Page 4] action is not obviously frivolous." West Coast Exploration Co. v. McKay, 213 F.2d 582, 591 (D.C. Cir.), cert. denied, 347 U.S. 989 (1954)(emphasis supplied). Moreover,
Bell v. Hood, 327 U.S. 678, 682 (1946).
By filing a complaint alleging a violation of the whistleblower protection
provisions of the environmental statutes, Sasse properly invoked the Department of Labor's
jurisdiction to adjudicate the complaint. While DOJ argues that "[t]he acts alleged by the
complainant are not, under any reasoned interpretation of the statutes invoked here protected
'whistleblowing' activity," Petition for Review at 5, it does not contend that Sasse's arguments
are frivolous or without color or merit. In fact, DOJ admitted that "[i]n certifying this matter
for interlocutory appeal, Judge Tierney correctly found that 'there is [sic] obviously
substantial grounds for difference of opinion on the question of whether the Complainant has
engaged in protected activity.'" Id. at 6. Thus, even if we should ultimately agree with
DOJ that Sasse's duties as an Assistant United States Attorney do not constitute protected activity
under the environmental statutes, such finding would not divest the Department of Labor of
jurisdiction to hear and decide the case.1
We DENY DOJ's Petition for Review and REMAND the
case to the ALJ to proceed with the adjudication of Sasse's complaint.
SO ORDERED.
PAUL GREENBERG
E. COOPER BROWN
CYNTHIA L. ATTWOOD
1 DOJ cites American Nuclear Resources
v. United States Dept. of Labor, 134 F.3d 1292 (6th Cir. 1998), in support of its argument that the ALJ's
finding that Sasse engaged in protected activity was overly broad. Significantly, while the Sixth Circuit in
American Nuclear Resources rejected the Secretary of Labor's finding that the complainant's activity
was protected under the whistleblower protection provision of the Energy Reorganization Act, 42 U.S.C.
§5851, there is not the slightest suggestion in the court's opinion that the Secretary did not have
jurisdiction to make the finding in the first instance.
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