Oliver v. Hydro-Vac Services, Inc., ARB No. 97- 063, ALJ No. 1991-SWD-1 (ARB Sept. 8, 1997)

U.S. Department of Labor

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

ARB CASE NO. 97-063
ALJ CASE NO. 91-SWD-0001
DATE: September 8, 1997

In the Matter of:

ERNEST A. OLIVER
    COMPLAINANT,

    v.

HYDRO-VAC SERVICES, INC.,
    RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

   On November 1, 1995, the Secretary found that Respondent Hydro-Vac Services, Inc. discriminated against Complainant Ernest A. Oliver for engaging in activities protected under the Solid Waste Disposal Act of 1988 (SWDA), 42 U.S.C. § 6971 (1988) and the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1367 (1988), when it fired him in August 1990. The Secretary ordered Hydro-Vac to reinstate Oliver to his former position and remanded the case for a recommended decision on the appropriate amount of damages. A Recommended Decision and Order on damages and attorney's fees was issued on February 19, 1997.

   Both parties excepted to the ALJ's refusal to issue subpoenas to third parties to testify at the hearing on remand.¹ The ALJ denied the parties' motions for issuance of subpoenas in an Order of October 11, 1996, (copy attached) holding that "[u]nder the Administrative Procedure Act an employee presiding at a hearing only has the authority to 'issue subpoenas authorized by law.' See Section 7(b), 5 U.S.C. § 556(c)(2). There is no such authorization in either the Solid Waste Disposal Act ... or the Federal Water Pollution Control Act...."

¹ Each party excepted to the ALJ's R. D. & O. on other grounds as well.