Mark Kelly v. Daniel Dorman

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 8, 2024*
Decided February 9, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 23-1765
MARK KELLY,
Plaintiff-Appellant,
v.
DANIEL DORMAN, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of Indiana,
New Albany Division.
No. 4:22-cv-00071-TWP-KMB
Tanya Walton Pratt,
Chief Judge.
O R D E R
Mark Kelly, formerly a chemist at a private research laboratory, appeals the
dismissal of his lawsuit challenging the Nuclear Regulatory Commission’s investigation
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 23-1765 Page 2
of his complaints of his former employer’s wrongdoing. The district court concluded
that Kelly lacked standing and dismissed the case for lack of jurisdiction. We affirm.
We recite the facts according to the allegations in Kelly’s amended complaint.
See A.F. Moore & Assoc. v. Pappas, 948 F.3d 889, 891 (7th Cir. 2020). In the 1990s, Kelly
worked for Lambda Research, Inc., a company that provided technical reports to
customers in the nuclear industry. In 1999, Kelly came to believe that these reports
contained erroneous calculations about the texture of zirconium, an element used to
manufacture nuclear reactor components. Fearing that such errors could cause or
exacerbate nuclear accidents, Kelly reported his concerns to his boss, who reacted
angrily. Kelly then complained to the Nuclear Regulatory Commission, which
investigated and then informed him that errors in Lambda’s texture analysis were “not
a safety concern.” Dissatisfied and facing an increasingly hostile workplace, he resigned
from Lambda.
In 2000, Kelly sued Lambda in federal court for retaliation and constructive
discharge under the state whistleblower statute. The district court granted summary
judgment to Lambda and the Sixth Circuit affirmed. See Kelly v. Lambda Research, Inc.,
89 Fed. Appx. 535, 545 (6th Cir. 2004).
In 2022, Kelly brought this suit against the Nuclear Regulatory Commission and
several of its officials. In a sprawling complaint, he alleged that the Commission—
through its flawed 1999 investigation and related reports—had concealed errors to
protect Lambda, put public safety at risk, and harmed his own reputation, career, and
general well-being. He asked that the Commission be ordered to correct all reports
concerning zirconium texture analysis and review any influence that its reports may
have had on public safety.
The district court screened Kelly’s complaint, see 18 U.S.C. § 1915(e), and
dismissed it for lack of jurisdiction. The court explained that Kelly lacked standing
because he appeared to raise only a general grievance about a government agency that
did not present a case or controversy as required by Article III of the Constitution. The
court granted Kelly leave to amend his claim, warning that if he did not address the
errors identified in his complaint, his case would be dismissed.
Kelly amended his complaint to additionally allege that the Commission’s
flawed investigation violated his rights to due process and free speech by dooming his
later employment-discrimination lawsuit. The court, adopting a magistrate judge’s

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No. 23-1765 Page 3
report and recommendation, reiterated that Kelly lacked standing because his
conclusory allegations of harm were insufficient to suggest how any conduct by the
defendants concretely harmed him.
On appeal, Kelly asserts only that his allegations of injury are sufficient for
purposes of standing. But a complaint fails for lack of standing “unless the complaint
plausibly alleges concrete injury caused by the asserted wrong.” Baysal v. Midvale
Indemnity Co., 78 F.4th 976, 978 (7th Cir. 2023) (citing Dep’t of Ed. v. Brown, 600 U.S. 551
(2023)). The injury must be traceable to the asserted wrong and likely rather than
conjectural. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Kelly’s complaint does
not meet this standard because he failed to plausibly allege that any injury he
suffered—the loss of a job he resigned from, harm to his reputation, his unsuccessful
lawsuit—is remotely traceable to the Commission’s 1999 response.
AFFIRMED

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