Egbert v. U.S. Air Force, ARB No. 99-096, ALJ No. 1999-TSC-1 (ARB Sept. 15, 2000)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO. 99-096
ALJ CASE NO. 99-TSC-1
DATE: September 15, 2000

In the Matter of:

GARY W. EGBERT,
    COMPLAINANT,

    v.

UNITED STATES AIR FORCE,
    RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:
    Rhonda G. Thomas, Esq.,
      Oklahoma City, OK

For the Respondent:
    Maj. Sandra M. Wozniak,
      Tinker Air Force Base, OK

   Gary W. Egbert filed a complaint alleging that his employer, the United States Air Force, terminated his employment in retaliation for activities which Egbert asserted were protected by the whistleblower protection provision of the Toxic Substances Control Act (TSCA), 15 U.S.C. §2622 (1988). The Administrative Law Judge to which the case was assigned recommended that we dismiss it because Egbert had not filed his complaint within TSCA's 30 day statute of limitations and no grounds existed to justify equitably tolling the limitations period. We agree that the compliant must be dismissed, but for a different reason.

   Egbert was employed by the Air Force from 1994 until his termination on September 5, 1998. In the summer of 1998 Egbert complained to the Occupational Safety and Heath Administration (OHSA) about health and safety hazards, including his alleged exposure to hazardous substances at his work site. Subsequently Egbert was terminated. Egbert filed a TSCA whistleblower complaint with OSHA in which he asserted that he was fired because he complained to OSHA about hazardous conditions at his place of work. The Air Force alleged that on the day before the OSHA health and safety inspection, Egbert had intentionally caused leaks of hydraulic fluid near the inspection site, and Egbert was terminated for that reason alone. Egbert denied the allegation that he intentionally caused the fluid leaks.

   OSHA denied Egbert's complaint on the ground that it was not timely filed, and Egbert requested a hearing. The Air Force moved to dismiss on the grounds that the Department of Labor lacked subject matter jurisdiction under TSCA because of sovereign immunity, and that, in any event, the complaint was not timely. The ALJ granted the motion to dismiss on timeliness grounds. He ruled that he need not decide whether sovereign immunity barred the complaint.

   Egbert appealed the ALJ's recommended dismissal of his complaint to this Board.

   As an entity of the United States government, the Air Force cannot be held liable unless the United States has waived its sovereign immunity under TSCA. Any waiver of sovereign immunity must be "unequivocal." United States Dep't of Energy v. State of Ohio, 503 U.S. 607, 615 (1992). As this Board has held previously, the United States has not waived its sovereign immunity under TSCA's employee protection provision, except for certain whistleblower complaints involving lead-based paint. Berkman v. United States Coast Guard Academy, ARB Case No. 98-056, ALJ Case Nos. 97-CAA-2, 97-CAA-9, Sec. Dec. and Rem. Ord., Feb. 29, 2000, slip op. at 13; accord Stephenson v. NASA, Case No. 94-TSC-5, Sec. Dec. and Ord. of Rem., July 3, 1995, slip op. at 6-8; Johnson v. Oak Ridge Operations Office, United States Dep't of Energy, ARB Case No. 97-057, ALJ Case Nos. 95-CAA-20, -21, -22, Final Dec. and Ord., Sept. 30, 1999, slip op. at 9. Therefore we do not have jurisdiction to decide this case.

   Because we dismiss this case for lack of subject matter jurisdiction, we do not reach the issue whether Egbert filed his complaint in a timely manner.

   For the foregoing reasons this complaint is DISMISSED.

   SO ORDERED.

      PAUL GREENBERG
      Chair

      E. COOPER BROWN
      Member

      CYNTHIA L. ATTWOOD
      Member