Case 3:23-cv-04597-EMC Document 100 Filed 08/27/24 Page 1 of 52
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`Ashley M. Gjovik, JD
`In Propria Persona
`2108 N St. Ste. 4553
`Sacramento, CA, 95816
`(408) 883-4428
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`legal@ashleygjovik.com
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`United States District Court
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`Northern District of California
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`Ashley M. Gjovik , an individual,
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`Case No. 3:23 -CV-04597-EMC
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`Plaintiff,
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`Notice of Pendency
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`Civil L.R. 3 -13
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`Ashley Gjovik v Apple Inc ,
`ARB Case No. 2024-0060,
`OALJ Case No. 2024 -CER -00001
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`Apple Inc., a corporation,
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`Defendant.
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`Case 3:23-cv-04597-EMC Document 100 Filed 08/27/24 Page 2 of 52
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`I. Notice of Administrative Pendency
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`Plaintiff
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`files
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`this notice of administrative pendency
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`regarding her
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`Comprehensive Environmental Response, Compensation, and
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`Liability Act (CERCLA) whistleblower claim currently with the U.S.
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`Department of Labor. The CERCLA (toxic waste dump laws) provides statutor y
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`protection from whistleblower retaliation under 42 U.S.C. § 9610. [Exhibit D].
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`Plaintiff filed a whistleblower retaliation complaint in August of 2021. These
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`types of environmental whistleblower claims proceed through federal OSHA Wage
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`& Hour before being allowed a de novo hearing with an ALJ at the U.S. Dept. of
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`Labor OALJ. The hearing is supposed to be a formal A.P.A. adjudication. OSHA
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`did not release Plaintiff ’s claim until December of 2023 and she filed a timely
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`request for de novo hearing with OALJ on Januar y 7 2024.
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`Per 29 CFR Part 24, appeals of OALJ decisions go to the U.S. Dept. of Labor
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`Admin. Review Board, and then there is an optional review by the Sec. of Labor if
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`they so choose. After that, then the CERCLA decision is appealable to a U.S.
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`District Court. Id. [Exhibit E]. 1 If the case also has additional environmental
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`statutes beyond CERCLA, then those claims are appealable to an appellate cour t,
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`not a District Court. Plaintiff did request inclusion of additional statutes (RCR A,
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`CA A, and TSCA), but her request was denied by the ALJ.
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`The U.S. Dept. of Labor OALJ ALJ abruptly dismissed Plaintiff ’s CERCLA
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`case on August 7 2024. [ Exhibit C]. Plaintiff timely filed a request for appellate
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`review to the U.S. Dept. of Labor ARB on August 21 2024, and review was granted
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`on August 27 2024. [ Exhibit A and B]. The ARB case is Ashley Gjovik v Apple Inc ,
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`1 2 9 C FR , § 24 . 1 1 2 Ju dic i a l r ev iew. “ (d ) Un d er t h e C E RCL A , a fter t he iss ua nc e o f a f in a l
`o r de r … fo r wh ic h j ud ic i a l r ev iew i s av a i la b l e, a ny p er so n a d ve r s e ly a f fec te d o r a g gr ieve d by
`t he o r de r m ay f i le a p et i t io n fo r r ev i ew o f t h e o r de r i n t h e U S d ist r ic t c o ur t in w hic h t h e
`v io lat io n a l l eg e dly o c c u r re d. Fo r p ur po se s o f ju d ic i a l e c o no my a n d c o ns i ste ncy, w h en a fi na l
`o r de r u nd er t he C ERCL A a l so i s i ss u ed un d er a ny o t h er st at u te li s te d i n § 24 . 1 0 0 (a) , t h e
`ad ver s e ly a ffec ted o r a g gr ieve d pe r s o n m ay f il e a pet it i o n fo r r ev i ew o f t he e nt i re o r de r i n t h e
`Uni ted St a tes Co u r t o f Ap p ea ls fo r t he c irc u it i n w h ic h t he v io lat io n a l l eg e dly o c c u r r ed o r t h e
`c irc uit in w hic h t h e c o m pla i na nt r es i de d o n t h e da te o f t h e v i o l at i o n .”
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`Case 3:23-cv-04597-EMC Document 100 Filed 08/27/24 Page 3 of 52
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`ARB-2024-0060, 2024-CER -00001.
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`The U.S. Dept. of Labor ARB issued a Notice of Appeal Acceptance today,
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`August 27 2024, and scheduled the briefing deadlines with the opening brief due
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`in 28 calendar days, the response brief due 28 calendar days after, and then a reply
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`brief due 14 calend ar days after that. [Exhibit A].
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`This adjudication is not a state or federal Cour t proceeding, as described under
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`Civil. L.R. 3 -13, however it may present itself for appellate review in this Court in
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`the near future, either by appeal of Plaintiff or Defendant. Plaintiff also requested
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`that ARB consider if, after correcting the mistakes of law, that she may be allowed
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`to “kick out” the claim for its de novo hearing within this federal civil lawsuit, if
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`this Cour t also approves. There have only been a handful of CERCLA
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`whistleblower retaliat ion cases under 42 U.S.C. § 9610 since the law was enacted
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`in the 1980s, so there is not much procedural precedent.
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`This Notice of Pendency is filed for the Court’s awareness .
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`Dated: August 27 2024
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`/s/ Ashley M. Gjovik
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`Pro Se Plaintiff
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`EXHIBIT A
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`Case 3:23-cv-04597-EMC Document 100 Filed 08/27/24 Page 5 of 52
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`U.S. Department of Labor
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`Administrative Review Board
`200 Constitution Ave. NW
`Washington, DC 20210-0001
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`IN THE MATTER OF:
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`ASHLEY GJOVIK,
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`APPLE, INC.,
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`COMPLAINANT,
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`v.
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`ARB CASE NO. 2024-0060
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`ALJ CASE NO. 2024-CER-00001
`ALJ JERRY R. DEMAIO
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`DATE: August 27, 2024
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`RESPONDENT.
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`NOTICE OF APPEAL ACCEPTANCE,
`ELECTRONIC FILING REQUIREMENTS, AND
`BRIEFING ORDER
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`PLEASE TAKE NOTICE that on August 21, 2024, Complainant Ashley Gjovik filed
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`a Petition for Review with the Administrative Review Board (Board) of Administrative Law
`Judge Jerry R. DeMaio’s Omnibus Order and Dismissal, issued on August 7, 2024.
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`1.
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`ACCEPTANCE OF APPEAL. The Board has accepted this matter for review and
`assigned it the case number noted above. All future filings related to this matter must
`include this case name and ARB Case Number. All filers are required to comply with
`the Board’s rules of practice and procedure found in 29 C.F.R. Part 26, which can be
`accessed at https://www.ecfr.gov/current/title-29/subtitle-A/part-26.
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`ELECTRONIC FILING AND SERVICE
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`A.
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`Use of the EFS System
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`2.
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`The Board’s Electronic Filing and Service (EFS) system allows parties to initiate
`appeals electronically, file briefs and motions electronically, receive electronic
`service of Board issuances and documents filed by other parties, and check the
`status of appeals via an Internet-accessible interface. Use of the EFS system is
`free of charge to all users. To use the EFS system go to https://efile.dol.gov.
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`Case 3:23-cv-04597-EMC Document 100 Filed 08/27/24 Page 6 of 52
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`2
`Lay Representatives: Use of the EFS system is
`and
`• Attorneys
`mandatory for all attorneys and lay representatives for all filing and
`all service related to cases filed with the Board, absent an exemption granted
`in advance for good cause shown pursuant to 29 C.F.R. § 26.3(a)(1), (2).
`
` •
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`is strongly
` Self-Represented Parties: Use of the EFS system
`encouraged for all self-represented parties with respect to all filings
`with the Board and service upon all other parties. Using the EFS system
`provides the benefit of built-in service on all other parties to the case.
`Without the use of the EFS system, a party is required to not only file its
`documents with the Board but also to serve copies of all filings on every other
`party. Using the EFS system saves litigants the time and expense of the
`required service step in the process, as the system completes all required
`service (after all parties are registered users in the system). Upon the parties’
`proper use of the EFS system, no duplicate paper filings are required.
`
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` Self-represented parties who choose not to use the EFS system must file all
`pleadings, including briefs, appendices, motions, and other supporting
`documentation, by mail or by personal or commercial delivery directed to:
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`
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` Administrative Review Board
` Clerk of the Appellate Boards
` U.S. Department of Labor
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`200 Constitution Avenue, N.W., Room S-5220
` Washington, D.C., 20210
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`Please note that the Board’s rules at 29 C.F.R. § 26.3(a)(4) specify that
`“[u]nless a different time is set by statute, regulation, executive order, or
`judge’s order, a document is considered filed when received by the Clerk of
`the Appellate Boards.” This means that unless otherwise set by law, under
`the Board’s regulations, a mailed document is not filed with the Board upon
`mailing or postmark date, but instead is filed upon receipt of the document
`by the Clerk’s office. In contrast, documents filed through the system are
`received as of the date and time recorded by the EFS system, and, per 29
`C.F.R. § 26.2(b)(2)(i), are timely as long as they are received at or before
`11:59:59 Eastern time on the due date (i.e., the last minute and second of the
`day it is due).
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` The filing party must also serve all other parties to the case by a method of
`service authorized under applicable law or rule.
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`Case 3:23-cv-04597-EMC Document 100 Filed 08/27/24 Page 7 of 52
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`3
`• Non-Party Participants: Amici or other non-party participants in a
`case filed before the Board, if represented by counsel or a lay representative,
`are required to use the EFS system for all filing and service.
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`EFS Registration and Duty to Designate E-mail Address for Service
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`To use the Board’s EFS system, a user must have a validated user account. To
`create a validated EFS user account, a user must register and designate a valid
`e-mail address by going to https://efile.dol.gov, select the button to “Create
`Account,” and proceed through the registration process. If the user already has
`an account, they may simply use the option to “Sign In.”
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`In order for any other user (other than the EFS user who filed the appeal) to
`access the appeal, the user must submit an access request. To submit an access
`request, users must log into the EFS System, select “eFile & eService with the
`Administrative Review Board,” select the button “Request Access to Appeals,”
`search for and select the appeal the user is requesting access to, answer the
`questions as prompted, and click the button “Submit to DOL.”
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`Information regarding registration for access to and use of the EFS system,
`including for parties responding to a filed appeal, as well as a step-by-step User
`Guide, answers to frequently asked questions (FAQs), video tutorials and
`contact information for login.gov and EFS support can be found under the
`“Support” tab at https://efile.dol.gov.
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`B.
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`C.
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`D.
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`Effective Time of Filings
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`Any electronic filing transmitted to the Board through the EFS e-File system by
`11:59:59 Eastern Time shall be deemed to be filed on the date of transmission.
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`Service of Filings
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`• Service on Registered EFS Users: Service upon registered EFS users is
`accomplished by the EFS system.
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`• Service on Other Parties or Participants: Service upon a party that is
`not a registered EFS user must be accomplished through any other method
`of service authorized under applicable rule or law.
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`E.
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`Proof of Service
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`Case 3:23-cv-04597-EMC Document 100 Filed 08/27/24 Page 8 of 52
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`4
`is required to prepare and file a certificate of service with all
`Every party
`filings. The certificate of service must identify what was served, upon whom,
`and in what manner. Although electronic filing of any document through the
`EFS system will constitute service of that document on all EFS-registered
`parties, electronic filing of a certificate of service through the EFS system is still
`required. Non EFS-registered parties must be served using other means
`authorized by law or rule.
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`BRIEFING REQUIREMENTS
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`A.
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`Briefing Schedule
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`• Opening Brief: Within 28 calendar days of the date of this Order, the
`petitioner must file with the Board a supporting legal brief of points and
`authorities. The Opening Brief may not exceed 50 double-spaced pages.
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`• Response Brief: Within 28 calendar days from the date of service of the
`petitioner’s Opening Brief, the opposing party may file with the Board a
`Response Brief in opposition to the Opening Brief. The Response Brief may
`not exceed 50 double-spaced pages.
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`• Reply Brief: Within 14 calendar days from the date of service of a Response
`Brief, the petitioner may file with the Board a Reply Brief. The Reply Brief
`may not exceed 20 double-spaced pages.
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`No additional briefs may be filed without the prior written permission of the
`Board, issued by Order.
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`B. Motions and Responses
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`• Motions: All motions and other requests for extraordinary action by the
`Board including, but not limited to, requests for extensions of time or to
`exceed page limitations, shall be in the form of a motion. Motions may not
`exceed 30 double-spaced pages.
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`Before filing any motion or other request for non-dispositive action or relief
`with the Board, including any request for an extension of time, the moving
`party must make a good faith effort to confer with all other parties to
`ascertain whether they consent to the action or relief sought. The moving
`party must state in its motion whether the other parties’ consent to the
`action or relief sought or, if no conference occurred, the efforts the moving
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`3.
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`Case 3:23-cv-04597-EMC Document 100 Filed 08/27/24 Page 9 of 52
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`5
`party made to confer with the other parties. Any motion for non-dispositive
`action or relief that fails to include this information may be summarily
`denied.
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`• Response to motions: Any party may file a response to a motion. Any
`response must be filed within 10 calendar days after service of the motion
`unless the Board shortens or extends the time. Responses may not exceed
`30 double-spaced pages.
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` •
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` Replies to Responses: Any movant may file a reply to a response. A reply
`must not present matters that do not relate to the response. Any reply to a
`response must be filed within 7 calendar days after service of the response.
`Responses may not exceed 12 double-spaced pages.
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`C. Withdrawals and Settlements
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`Several of the Board’s program regulations provide for withdrawals of appeals
`and settlements. Requests to withdraw an appeal or for approval of a
`settlement must be made by motion to the Board. For regulations requiring
`Board approval of settlements, parties must submit a fully executed and dated
`copy of the settlement agreement to the Board with its motion to dismiss based
`on settlement. Motions to withdraw under regulations requiring Board
`approval of settlements that are not based on settlement, must certify under
`penalty of perjury that the withdrawal is not based on a settlement. Any motion
`that fails to comply with these requirements may be summarily denied.
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`D.
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`Appendix and Exhibit Filings
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`The Board already possesses the entire record. It is not allowed for any party to
`file the entire record as an appendix or exhibit. Parties are only permitted to file
`an appendix containing specific cited portions of the record relied upon in a
`party’s accompanying filing.
`
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`Any filed appendix shall consist only of well-labeled excerpts from the record
`that are directly cited in the brief, motion or other filing accompanying the
`appendix. Parties may not include in an appendix any evidence not already
`contained in the record, without prior written permission granted by Board
`order.
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`4.
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`Case 3:23-cv-04597-EMC Document 100 Filed 08/27/24 Page 10 of 52
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`6
`file new evidence must file a motion with the Board
`Parties seeking to
`with supporting argument. The Board retains the authority to reject any
`appendix or exhibit filings that do not meet these requirements.
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`E.
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`F.
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`Page Limitations
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`The page limitations set forth in this Order do not include cover pages, tables of
`contents, tables of citations, signature blocks, or certificates of service. A motion
`to exceed an identified page limitation must specify why additional pages are
`required. Such motions will not be granted except
`in extraordinary
`circumstances.
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`If a brief or motion is filed without approval that exceeds the stated page
`limitations, the Board may, with or without notice: (1) refuse to accept the filing;
`(2) strike the filing with leave to refile a compliant filing within a specified time;
`(3) disregard the pages of the filing that exceed the page limitation; or (4) issue
`any other appropriate order, including the issuance of sanctions.
`
`Required Format: All pleadings, briefs, and motions must comply with
`the following requirements:
`
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`• 12-point, 10 character-per-inch type or larger font
`• Double-spaced
`• Minimum of one-inch margins
`• Capable of being printed on 8.5- by11-inch paper
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`INQUIRIES AND CORRESPONDENCE: After an appeal is filed, all inquiries and
`correspondence related to filings should be directed to the Office of the Clerk of the
`Appellate Boards by telephone at 202-693-6300 or by fax at 202-513-6832. Other
`inquiries or questions may be directed to the Board by telephone at (202) 693-6200 or
`by email to ARB-Correspondence@dol.gov.
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`SO ORDERED.
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`FOR THE ADMINISTRATIVE REVIEW BOARD
`PURSUANT TO DELEGATED AUTHORITY:
`
`
`
`____________________________________
`Thomas O. Shepherd, Jr.
`Clerk of the Appellate Boards
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`Case 3:23-cv-04597-EMC Document 100 Filed 08/27/24 Page 11 of 52
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`EXHIBIT B
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`Case 3:23-cv-04597-EMC Document 100 Filed 08/27/24 Page 12 of 52
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`Ashley M. Gjovik, JD
`In Propria Persona
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`(408) 883 -4428
`legal@ash ley gjov ik .com
`
`
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`
`U.S. Department of Labor
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`Administrative Review Board
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`Washington, D.C.
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`
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`Ashley M. Gjovik , an e mployee,
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`OALJ Case: 2024-CER-00001
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`Appellant/Complainant ,
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`eFile Case : ARB-2408-799556
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` vs.
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`Apple Inc., a corporation & e mployer,
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`Appellee/Respondent .
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`Appellant/Complainant’s
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`Petition for Review
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`Petition Filed & Served:
`Aug. 21 2024.
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`Supplement Served:
`Aug. 22 2024.
` (awaiting eFile access to file.)
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`Case 3:23-cv-04597-EMC Document 100 Filed 08/27/24 Page 13 of 52
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`Appellant/Complainant’s Petition for Appeal
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`1.
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`Appellant/Complainant , Ashley Gjovik, respectfully submits this
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`petition requesting review the OALJ’s August 7 2024 Decision and Order for
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`CERCLA whistleblower case 2024-CER -00001. The request for appeal was filed
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`within 10 business days following the decision (August 7 2024), with the initial
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`Petition for Review filed by Appellant on August 21 2024 at 11:56 PM. (see, eFile
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`No. ARB-2408-799556).
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`2.
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`This is a supplemental filing with the assignment of errors and
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`objections. Copies of the initial petition and this supplemental petition are in the
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`possession of USPS and are enroute to all required parties. Appellee was also
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`notified through email with attached copies of all filings. Please see attached
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`Certificate of Ser vice.
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`Objections & Assignment of Issues
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`3.
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`Appellant objects to the following conclusions, assertions, decisions,
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`and orders within the August 7 2024 Decision and Order. Gjovik believes these
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`points are all reversable errors , highly prejudicial, and all are material to the
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`outcome of this adjudicatio n. Gjovik also urges the ARB to take a hard look at the
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`whole record and evaluate the matter de novo.
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`4.
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`The August 7 2024 Decision and Order is contrar y to all US Dept. of
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`Labor Secretar y’s decisions and guidance on environmental whistleblower cases .
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`It also directly contradicts decisions already made on the same matters between
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`the same par ties by a U.S. Judge on May 20 2024 in Gjovik’s active federal civil
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`lawsuit. (A copy of the 50-page decision was submitted to the OALJ record on May
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`22 2024, over two months before this dismissal.)
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`5.
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`This petition will summarize the assigned errors of law, errors of fact,
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`mixed issues, procedural errors, violations of due process, and discretionar y
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`Case 3:23-cv-04597-EMC Document 100 Filed 08/27/24 Page 14 of 52
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`issues. This petition will also identify the unfortunate ly lengthy list of ways the
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`ALJ’s August 7 2024 Decision and Order violate s the APA, CERCLA, and the U.S.
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`Constitution (related to at least Separation of Powers, Non -Delegation, Due
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`Process, and Judicial Restraint / Avoidance Doctrines).
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`6.
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`All points made herewith -in were already expressly raised in Gjovik’s
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`Opposition, Reply, and Sur-reply filings to OALJ (other than peculiarities in the
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`Decision itself ). The ALJ referenced Gjovik’s responsive filings and arguments
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`zero times. This petition is written as an essay because there were no actual
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`findings of fact or law in the Decision, so its difficult to assign errors in the typical
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`format.
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`Issues of Fact
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`7.
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`There are few issues of fact to assign because there are not many facts
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`included in the ALJ’s Decision. The ALJ does not provide a factual basis cited to
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`the record for his decision. Fur ther, there are ~10 references to the Amended
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`Complaint in the Decision, and the majority of those references are citations to a
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`range of paragraphs linked to a general assertion or cited as a basis for a legal
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`conclusion. There are also ~10 references to the checkbox webform entr y Gjovik
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`submitted to US DOL on August 29 202 1 and a second form with a paragraph of
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`informal text that Wage & Hour wrote themselves in December 2021 without
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`consulting Gjovik and refused to correct after. Gjovik repeatedly objected to this
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`with OSHA and OAL J.
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`8.
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`There are no references in the Decision to any of the complaints that
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`Gjovik drafted herself in 2021. However, the ALJ does references some ‘facts’
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`from Apple’s Motion to Dismiss and Opposition to Motion to Amend. The ALJ
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`does not attempt to reconcile conflicting factual claims or evidence, but instead
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`gives deference and priority to Apple’s version of events.
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`9.
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`Starting at Section II: Motion to Ame nd (following Procedural Histor y ),
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`there are around 7 pages of text total in the Decision. 2 of the 7 pages are dedicated
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`to listing dozens of paragraphs of Gjovik’s claims the ALJ improperly approved to
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`strike from the case; atr y2.5 pages discuss in detail what is essentially several
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`rules the ALJ enacted himself and which are contrar y and disruptive to the
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`Secretar y’s stare decisis ; and another 2 pages analyze substantive provisions of a
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`US EPA statute that is unrelated to whistleblower retaliation and the US Dept. of
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`Labor has no authority to tr y to interpret ( let alone tr y to promulgate decisions
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`about Apple’s ‘liability’ under substantive enforcement provisions in those
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`statutes which are exclusively governed by the US EPA and US DOJ.)
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`10. There are no findings of fact, and the legal analysis repeatedly
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`explains the Motion to Dismiss was granted and Motion to Amend denied partially
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`due to insufficient facts, yet concurrently acknowledges there would be enough
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`facts to plead those claims if the ALJ had not decide to strike those facts due the
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`rule he just came up with about street addresses and webforms .
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`11.
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`Further, a detailed brief was filed by Gjovik on Januar y 7 2024 and
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`incorporated into the Motion to Amend, but was never referenced in the Decision
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`either. Gjovik also tried to provide numerous exhibits to help the ALJ understand
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`the facts and technical details , and the Decision claims the ALJ reviewed them,
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`but the ALJ never references them , and even write that he does not want to talk
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`about them (the evidence).
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`12. There are also significant facts and events the ALJ failed to
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`acknowledge – such as the US EPA conducting a CERCLA inspection of Apple’s
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`facility in August 2021 due to Gjovik’s July 2021 CERCLA disclosures. There are
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`too many omissions to list individually so this is a general objection that the
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`majority of material facts alleged by Gjovik were never reflected in this decision
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`at all.
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`13. The ALJ did acknowledge there is an active, concurrent federal
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`lawsuit on these matters and Gjovik submitted both the civil complaint in that
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`lawsuit (“4AC”) as well as the May 20 2024 decision approving a dozen of her
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`claims to move for ward, including claims with similar and overlapping facts and
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`questions as in this adjudication. She also filed a copy of the civil Joint Case
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`Management Statement on June 23 2024 and urged coordination between the
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`tribunal and court due to overlapping claims. Despite this, the ALJ gave no
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`deference to the prior determination by a U.S. Judge and instead issued a Decision
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`that is mostly the opposite of the judicial decision despite being about overlapping
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`facts.
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`14. The ALJ also overstepped far outside his statutor y authorization in
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`declaring the legal status of Apple’s activities under non -DOL statutes and
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`without fact finding or an evidentiar y hearing. The question of who is an
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`“ope rator ” with CERCLA strict liability, if it was even relevant here, is a question
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`of fact that requires investigation by the U.S. EPA , not U.S. DOL.
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`Issues of Law (& Mixed Issues)
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`15. The August 7 2024 decision is fundamentally incorrect. It is not based
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`on the facts alleged, nor does it rely on relevant or appropriate law. If an ALJ does
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`not cite to facts in the record, then there are no findings of fact, and the decision
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`is not supported by substantial evidence. If the ALJ does not cite relevant law as
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`a basis for decisions, then there are also no findings of law. The ALJ did not
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`actually issue a Decision, but instead essentially sent Gjovik a 7-page letter.
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`16.
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` These environmental whistleblower cases are quite rare, especially
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`CERCLA cases, so this may have been his first experience, and he may not have
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`been aware of the unique, dedicated case law and procedure.
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`17. The August 7 2024 Decision cites CERCLA substantive provisions
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`governed by the US EPA (not US DOL) at least 5 times, cites a SCOTUS case
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`about substantive CERCLA law at least three times, cites to 9 t h Circuit decisions
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`about CERCLA and civil procedure at least 6 times, cites to 1 California U.S.
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`District Court case about substantive CERCLA law, and cites the FRCP at least 4
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`times. That might be fine if this was substan tive CERCLA case at a US District
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`Cour t located in California, but this is an agency tribunal in Boston deciding
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`retaliation claims. The ALJ also mistakes the FRCP’s applicability for amending
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`environmental whistleblower complaints, as amendment is included in the CFR
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`for these cases and there is supporting environmental whistleblower case law
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`which is a different standard then FRCP – so the FRCP and 9 t h Circuit is not
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`applicable, and US DOL cases should have been cited instead.
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`18. The ALJ’s Decision cites the 1 s t Circuit zero times, cites the CFR
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`around six times but two of the citations are errors of law, and cites U.S. Dept. of
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`Labor cases 3 times - but 2 of the references are only related to Motions to Dismiss
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`generally and only 1 of the references is related to CERCLA. The ALJ cites zero
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`U.S. Dept. of Labor cases about the CA A, TSCA, or RCR A. In total, in appears
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`the ALJ cites one single US Dept. of Labor case as the substantive legal basis for
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`the entire decision on four whistleblower claims.
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`19. The majority of the Decision is spent discussing new rules the ALJ
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`just created himself about environmental whistleblower retaliation cases. The ALJ
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`unilaterally restricted the coverage of environmental whistleblower statutes to
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`now only apply to one singl e, physical street address - and it must be where the
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`worker’s desk is assigned, and it must be the address the worker entered when the
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`worker submitted their first complaint to OSHA. 1 Only protected activities and
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`retaliation that occurred at that one street address are protected – but nothing
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`else. (This is contrar y to all U.S. Dept of Labor case law and regulations).
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`20. The ALJ also narrowed the scope of coverage of CERLCA protections
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`to only a facility that is an NPL Superfund site , and is the address the worker
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`entered on the OSHA form, and it’s the location where their desk is – and then
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`the worker will only have protection if their employer is also in binding contract
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`with the US EPA as an official Responsible Party of that specific NPL Superfund
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`1 T h e “ wo r k s i te” ad dr e ss f ie ld is a n no t a ted in t h e D OL W hi st l eb lo wer M a nua l a s b ei n g
`e nt i re ly fo r O SH A r eg io na l o f f ic e s to r efe re nc e w he n t h ey a ssi g n i nve st i ga to r s to t h e mat ter.
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`site. (This is also contrar y to all U.S. Dept of Labor case law and regulation ).
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`21. Apple’s assertions about the status and effect of the Record of
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`Decision are not based on fact or law. Whistleblower protection is not limited by
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`a Record of Decision, and factually the Record of Decision for the TRW
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`Microwave site is expired and no longer in operation – requiring a new remedy and
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`new Record of Decision , which Gjovik pointed out in her filings and the ALJ never
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`read it or ignored it.
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`22.
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`Further, there are only ten meritorious CERCLA whistleblower
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`decisions since the statute was enacted and none of those cases would pass this
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`new test. The majority of those cases involved situations where the issues
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`occurred at a location that was not an NPL Superfund site, and/or the employer
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`was not the Responsible Party.
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`23. The ALJ also created a rule where there must be 1 NPL Superfund
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`site involved for a CERCLA claim , but there cannot be more than 1 NPL Superfund
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`site involved. This was the ALJ’s justification for ‘striking’ any mention made to
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`the “Triple Site,” which is the name for the mega -groundwater plume th at the
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`TRW Microwave office’s plume is par t of and thus is the same address. The
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`content the ALJ tries to strike is incredibly disruptive, irrational, and prejudicial .
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`He does not explain why each stricken part is irrelevant but instead essentially
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`strikes ever ything Apple told him to strike, even if those facts are actual material
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`and central to the lawsuit.
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`24. The ALJ also restricts CERCLA whistleblower protection to now only
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`cover violations of CERCLA that definitely impact the public and environment.
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`(This
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`is actually the test only for ‘releases’ under CERCLA and other
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`environmental statues – but is not the test for activities unrelated to ‘releases’
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`like violations of the statute, regulator y compliance matters, fraud, contracts, and
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`so on.). Because the ALJ requires a formal NPL Superfund site to in order to
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`establish coverage, and ‘releases’ usually create a NPL Superfund site later, and
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`P e t it i on f or R