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David Wyche v. Occupational Safety and Health Administration

Paid petition · United States Court of Appeals for the Second Circuit, No. 19-3194 · judgment April 9, 2020


Certiorari denied · January 25, 2021
Pre-decision estimate: 0% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Questions presented

  1. Under the OSH Act of 1970 Do I fit the criteria as a whistleblower (1) considering I made work complaints to human resources; within two weeks of my final protected activity complaint I was terminated, (2) I was abruptly discharged without any human resources investigation addressing my work complaints, (3) I provided the respondent with images I captured of wet electrical equipment I was told to operate by my former employer to display unsafe work conditions, (4) the respondent failed to contest the original “prima facie” established with evidence e.g. employee records, (5) the respondent referred to evidence that supported their regional July 10, 2019 dismissal decision of my whistleblower claim, but failed to disclose or provide said evidence (Exhibit A)?

  2. According to Title 5 of the Privacy Act of 1974 Did the respondent violate this act (1) when my employment records e.g. employee training records were omitted in a whistleblower-employment investigation, (2) the respondent did not collect or maintain my employment files, but conducted an employment investigation, (3) the respondent dismissed my whistleblower claim without authenticating my employment record with my former employer, (4) I received a copy of my administrative record from the respondent which omitted employment records (FOIA REQUEST)?

  3. Under the federal “Judicial Review” and the “Right of Review” Statues Did the lower court disregard these statutes (1) when circuit judges refused to hear my case despite the fact I’m an aggrieved petitioner that was fired once I exercised my employee rights i.e. made protected activity complaints work conditions?

  4. According to the Occupational Safety and Health Standards Sec. “Duties of Employers and Employees”

  5. I was instructed to work on telecommunications equipment with live energized wires along with electrical systems without any training in rainy conditions, (2) what action should the respondent have taken when I forwarded the respondent my protected activity complaints including images of wet electrical equipment, (3) should the respondent have solicited training records from my former employer to prove I received training considering my former employer disputes that I was not trained? £c

Counsel of record

For petitioner
David Wyche

For respondent
Jeffrey B. Wall
Sullivan & Cromwell LLP

Case

Conference history
Distributed for 2 conferences

Proceedings

  1. Apr 19 2021
    Rehearing DENIED.
  2. Mar 24 2021
    DISTRIBUTED for Conference of 4/16/2021.
  3. Feb 19 2021
    Petition for Rehearing filed.
  4. Jan 25 2021
    Petition DENIED.
  5. Jan 06 2021
    DISTRIBUTED for Conference of 1/22/2021.
  6. Dec 28 2020
    Waiver of right of respondent OSHA to respond filed.
  7. Nov 09 2020
    Petition for a writ of certiorari filed. (Response due December 28, 2020)