I can hardly believe I am writing this. The Department of Labor’s Administrative Review Board (ARB) has just issued a decision applying Aschroft v. Iqbal to whistleblower complaints filed with the Occupational Safety and Health Administration (OSHA). As it happened to one of my clients, Douglas Evans, it has fallen to me to file a Motion for Reconsideration with the ARB. I filed that motion on May 10, 2010. The 2-1 decision also holds that the federal government is immune from whistleblower complaints under the Energy Reorganization Act (ERA, governing nuclear safety), and the Toxic Substances Control Act (TSCA). It acknowledges that the federal government has waived sovereign immunity under CAA, SWDA and CERCLA, the Clear Air, Solid Waste Disposal and Superfund Acts.

I am most distressed, though, with the application of Iqbal. In Aschroft v. Iqbal, the Supreme Court was faced with a claim that senior officials of the Bush Administration had authorized racial profiling against Americans of Middle Eastern descent in the wake of the 9/11 terrorist attacks. Stretching the requirements of pleading a constitutional violation to new limits, the 5-4 majority of the Supreme Court allowed a lower judge to dismiss the complaint on grounds that it was not “plausible” that former Attorney General John Ashcroft purposefully discriminated on the basis of national origin. The Supreme Court relied on prior cases holding that when plaintiffs allege a violation of the First or Fifth Amendments to the Constitution, then the complaint must allege sufficient facts from which the court can infer that the named individuals acted purposefully to violation those amendments. Still, the Supreme Court was working from Rule 8(a)(2) of the Federal Rules of Civil Procedure (FRCP) which normally require only a “short and plain statement of the claim.”

The ARB decided that it should use Iqbal because the Department of Labor (DOL) does not have its own rule equivalent to FRCP 12(b)(6), the rule that allows courts to dismiss cases that fail to state a claim for relief. However, DOL does have a rule on the requirements for an OSHA complaint. That rule is 29 CFR 24.103(b). This rule states, “No particular form of complaint is required, except that a complaint must be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violations.” It seems pretty clear to me, and to the dissenting ARB member, Judge E. Cooper Brown, that this rule makes Iqbal inapplicable to OSHA whistleblower complaints. That is the main point of the motion for reconsideration I filed for Douglas Evans.

Douglas Evans was an employee of the U.S. Environmental Protection Agency (EPA) in Las Vegas, Nevada, for 17 years. He was a technician who repaired equipment. EPA managers in Las Vegas were under pressure to get a high rate of their employees to “volunteer” for emergency response work. Evans recalls getting an order to participate. He wrote a letter to the EPA Administrator, and his supervisors never forgave him for it. Evans’ letter complained about the lack of training for the emergency response work, and about other aspects of the plan. I recognized that a concern about lack of training for emergency response work is an environmental concern. I filed Evans’ complaint with OSHA under the federal environmental laws. Shortly thereafter, Evans’ bosses fired him on trumped up charges. I filed a supplemental complaint against the discharge. OSHA dismissed. I requested a hearing before an Administrative Law Judge (ALJ). I asked for discovery from EPA. EPA made a motion to dismiss, and to stay discovery while its motion is pending. I opposed the motion to dismiss, citing the DOL’s rule that there is “no particular form of complaint.” I also provided statements from two of Evans’ co-workers supporting his complaint, and explained how the discharge in retaliation for his first OSHA complaint is certainly protected. Still, the ALJ dismissed the case, and now the ARB has affirmed.

With Evans’ permission, I am posting the ARB decision, and my motion for reconsideration. They may serve as a warning to other whistleblowers about how they must pay more attention to detailing their protected activity in OSHA complaints. Perhaps the ARB will not be so eager to dismiss in cases where the respondent is someone other than a federal agency. Let’s hope so. I am also hopeful that the majority members of the ARB may have an open heart as the review the motion for reconsideration.

This case is not over, but Evans’ career is. He has lost his job and his home, and cannot find other work.

AN UPDATE: Doug Evans’ petition for review in the Ninth Circuit has been put on pause while the ARB reconsiders the issue in light of its rebriefing and oral argument in Sylvester v. Parexel International, ARB Case No. 07-123.