Pickett v. Tennessee Valley Authority, 1999-CAA-25 (ALJ Oct. 13, 1999)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 565-4357 (202) 565-5325 (FAX)

Date Issued: October 13, 1999
Case No. 1999-CAA-0025

In the Matter of

DAVID PICKETT
    Complainant

   v.

TENNESSEE VALLEY
AUTHORITY (TVA), TVA
INSPECTOR GENERAL
GEORGE T. PROSSER AND
DONALD K. DRUMM
    Respondents

   By Order issued September 10, 1999, I remanded this matter to OSHA for further investigation of the complaint filed under the Clean Air Act and other statutes by David W. Pickett, a former employee of the Tennessee Valley Authority. On September 16, 1999, OSHA's Regional Supervisory Investigator, Region IV, advised Pickett that the investigator assigned to the "Tennessee area" is on extended leave until approximately mid-December, and budgetary restrictions do not permit OSHA to assign anyone else to this matter until the investigator returns. OSHA promises to contact Pickett and resume the investigation upon the return of its investigator.

   In response to OSHA's advise, Pickett , by letter dated September 18, 1999, complains that a three month delay in the investigation is incompatible with the requirements of the statute and contemptuous of the Order Remanding issued on

September 10, 1999. Pickett, therefore, moves that the September 10, Order be re-served upon Charles N. Jeffress, Assistant Secretary for OSHA, that OSHA's Region IV Supervisory Investigator be cited for contempt, and that OSHA be required to assign another investigator to his case. These requests must be denied.

   Initially, OSHA , as an agency of government, has designated the specific officials within its organization who shall receive service of process of official actions which effect the agency's mission or require the agency's action or forbearance. Service upon those designated to receive service constitutes sufficient notice to all agency officials of the content and import of the papers served and binds the agency with knowledge of their content. Consequently, if a court order, properly served upon the designated agency official, were to require an agency's action, it would provide no defense for an agency to refuse compliance merely because its top official was not personally served. In this instance, the September 10, Order was properly serviced upon OSHA, and its requirements are, within its terms, binding upon the agency whether or not the agency's chief executive is personally served. Under such circumstances, re-service of the Order provides no greater force or effect than the original service and is not warranted.

   Pickett also moves that the OSHA's Region IV Supervisory Investigator be held in contempt of the September 10, Order for failing to assign personnel to the investigation upon remand. It is true, as Pickett contends, that OSHA is tasked, among its other duties, with implementing the Department's responsibilities to investigate complaints arising under the Clean Air Act. It is also true that the September 10, Order remanding this matter recognizes Pickett's right to call upon OSHA to investigate the merits of his cause. The Order, however, does not, and indeed, cannot specifically dictate how OSHA commits its resource to any investigation nor the personnel it will employ in fulfilling its mission. The adjudicative process is not especially well-suited to the demands of micro-managing the day-to-day administration of OSHA's investigatory role, and few courts, absent compelling justification, would attempt such an intrusion. Agency personnel assignments and budget allocation priorities are amenable to scrutiny through management review and legislative oversight. Whatever inherent powers may emanate from the adjudicatory process, allocating an agency's resources, except perhaps in extraordinary circumstances, is rarely an appropriate adjudicatory function, and Butz v. Economou, 438 U.S. 478 (1978), lends no vitality to the contrary contention.

   I do not minimize Pickett's concern that he must await the return of OSHA's only discrimination investigator in the Tennessee area before any inquiry can proceed. Pickett correctly reads the statute as according priority treatment to a complaint of the type he has filed, and he believes OSHA should reassign his case to another investigator, perhaps from another region. While his suggestion, under the circumstances, certainly merits consideration, the potential impact of such an assignment on the area any reassigned investigator normally covers cannot be ignored. Because regional and area caseloads and budgets are probably roughly in balance, and indeed there is nothing before me which might suggest that resources exceed demand in any region of the country, resource allocations must rest within OSHA's sound discretion consistent with its delegated mandate. Ranking OSHA's many priority items which compete for its limited resources within any particular mission category is a function Congress conferred neither upon the courts nor any adjudicative tribunal.

   OSHA assures Pickett that it will pursue his investigation when its investigator returns. The September 10, Order remanding this matter to OSHA for further investigation specified neither a specific time period to complete the investigation nor did it identify specific personnel who were to undertake the inquiry upon remand. Thus, the failure to commence an investigation immediately due to the unavailability of resources clearly is not contempt of any specific provision of the Order. Further, while Pickett's palpable frustration is understandable, for the reasons set forth above, an order directing the reassignment of an investigator to his case is not appropriate under the circumstances. Accordingly:

   IT IS ORDERED that the Motion to Re-Serve, to Re-Assign, and for Contempt be, and it hereby is, Denied.

       STUART A. LEVIN
       Administrative Law Judge