Day v. Oak Ridge Operations, U.S. Dept. of Energy, ARB No. 02-032, ALJ No. 1999-CAA-23 (ARB July 25, 2003)

U.S. Department of Labor

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

ARB CASE NO. 02-032
ALJ CASE NO. 99-CAA-23
DATE: July 25, 2003

In the Matter of:

MILLARD F. DAY,
    COMPLAINANT,

    v.

OAK RIDGE OPERATIONS,
U.S. DEPARTMENT OF ENERGY,
GEORGE BENEDICT,
DAN WILKEN, et al.,
    RESPONDENTS.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:
    Edward A. Slavin, Jr., St. Augustine, Florida

For the Respondent:
Ivan A. Boatner, U. S. Department of Energy, Oak Ridge, Tennessee

   Millard F. Day brought this whistleblower case pursuant to the employee protection provisions of the Clean Air Act, 42 U.S.C.A. § 7622 (West 1995), the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. § 9610, the Safe Drinking Water Act, 42 U.S.C.A. § 300j-9(i) (West 2003), the Solid Waste Disposal Act, 42 U.S.C.A. § 6971 (West 1995), the Toxic Substances Control Act, 15 U.S.C.A. § 2622 (West 1998), and the Water Pollution Control Act, 33 U.S.C.A. § 1367 (West 2001). Day was required to file his whistleblower complaint within 30 days after the Department of Energy (DOE) terminated his employment. See 29 C.F.R. § 24.3(b) (2000).

   On October 3, 2001, an Administrative Law Judge (ALJ) conducted an evidentiary hearing, the scope of which was limited to "whether [Day] has made equitable reasons why he did not file his complaint within 30 days of his termination." Recommended Decision and Order (R. D. & O.) at 1. The ALJ found that Day's whistleblower complaint was filed more than 30 days after he received notice that the DOE had terminated his employment. Moreover, he concluded that since the evidence did not support the application of either equitable estoppel or equitable tolling, Day's complaint should be dismissed for lack of jurisdiction. R. D. & O. at 7-14.¹

   The Secretary has delegated to the Administrative Review Board (ARB) authority to review ALJs' recommended decisions in complaints arising under the environmental whistleblower statutes. See 29 C.F.R. § 24.8(a) (2002) and Secretary's Order No. 1-2002, 67 Fed. Reg. 64272 (Oct. 17, 2002). The ARB reviews the ALJ's findings of fact and conclusions of law de novo. See 5 U.S.C.A. § 557(b) (West 1996).

   We affirm the R. D. & O. The record supports the ALJ's findings of fact, and we adopt the ALJ's conclusions of law because they are founded upon established legal precedent.² The record does not support Day's arguments concerning his "ADA" or "EEO" case and his contention that DOE misled or prevented him from filing a timely complaint. We therefore adopt and attach the R. D. & O. and DENY Day's complaint.

   SO ORDERED.

      OLIVER M. TRANSUE
      Administrative Appeals Judge

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge

¹ The 30-day limitation period for filing whistleblower complaints, however, is not jurisdictional. See Whitaker v. CTI-Alaska, Inc., ARB No. 98-036, ALJ No. 1997-CAA-15, slip op. at 8 (ARB May 28, 1999).

² For additional authority that equitable tolling is generally inapplicable when a plaintiff is represented by counsel, see, e.g., Hall v. E G & G Defense Materials, Inc., ARB No. 98-076, ALJ No. 97-SDW-9, slip op. at n.5 (ARB Sept. 30, 1998); Lawrence v. City of Andalusia Waste Water Treatment Facility, ARB No. 96-059, ALJ No. 95-WPC-6 (ARB Sept. 23, 1996); Tracy v. Consol. Edison Co. of New York, Inc., 89-CAA-1 (Sec'y July 8, 1992). The federal circuit courts support the general principle that "once a claimant retains counsel, tolling ceases because she has ‘gained the ‘means of knowledge' of her rights and can be charged with constructive knowledge of the law's requirements.' " Leorna v. United States Dep't of State, 105 F.3d 548, 551 (9th Cir. 1997), citing Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1050 (9th Cir. 1987); Mercado-Garcia v. Ponce Fed. Bank, 979 F.2d 890, 896 (1st Cir. 1992); Daugherity v. Traylor Bros., Inc., 970 F.2d 348, 353 n.8 (7th Cir. 1992); Beshears v. Asbill, 930 F.2d 1348, 1351 (8th Cir. 1991); McClinton v. Alabama By-Products Corp., 743 F.2d 1483, 1486 n.4 (11th Cir. 1984); Vance v. Whirlpool Corp., 716 F.2d 1010, 1012-13 (4th Cir. 1983); Kocian v. Getty Refining & Mktg. Co., 707 F.2d 748, 755 (3d Cir. 1983); Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 (2d Cir. 1978); Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1200 n.8 (5th Cir. 1975).