United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

Return to Table of Topics, 503 Index

Enforcement hearings under Section 503 are included by reference as subject to the Equal Access to Justice Act by the Department's own regulation designating those proceedings which are covered by the Act. OFCCP v. Jacobi-Lewis Co., Inc., 88-OFC-18, ALJ Order Denying Motion to Amend, June 8, 1989, slip op. at 3; reversed, Assistant Secretary for Employment Standards Final Decision and Order, May 2, 1995, at 3.

It is inconceivable that either the Congress or the Department intended to distinguish between adjudicatory hearings prior to debarment under Title VII and those prior to debarment under Section 503 for purposes of the Equal Access to Justice Act, when both hearings are conducted pursuant to 41 CFR 60-30. Id. at 4; reversed, Assistant Secretary for Employment Standards Final Decision and Order, May 2, 1995, at 9-10.

Enforcement proceedings under Section 503 of the Rehabilitation Act are adversary adjudications under terms imposed by the Equal Access to Justice Act. Id.; reversed, Assistant Secretary for Employment Standards Final Decision and Order, May 2, 1995, at 9.

An award of fees and costs is just in this instance because of the overall untimeliness, evasiveness, and inadequacy of DOL's responses to the Defendant's First Set of Interrogatories and Request for Production. OFCCP v. Crown Zellerbach Corp., 87-OFC-23, ALJ Discovery Order, June 6, 1989, slip op. at 44, Decision and Order of Dismissal, September 20, 1989.

ALJ imposes sanctions against defense counsel for her failure to appear at a scheduled deposition. Counsel must reimburse plaintiff for court reporter and transcript costs; must pay reasonable attorney's fees to plaintiff associated with services performed on the day defense counsel failed to appear; and must make the deponent available at defense counsel's expense in Washington D.C., or if deposition has been completed, must reimburse plaintiff for reasonable costs associated therewith. OFCCP v. Mississippi Power Co., 92-OFC-8, ALJ Order Partially Granting Motion for Sanctions, July 16, 1993, slip op. at 3; reversed, Assistant Secretary Order, July 19, 1995.

There is no provision in Department of Labor regulations governing administrative proceedings under Section 503, [for] an appeal of an ALJ order imposing or denying sanctions for alleged misconduct of an attorney. The only provision for review of ALJ orders in Section 503 cases permits any party to file exceptions to an ALJ recommended decision after the hearing. OFCCP v. Mississippi Power Co., 92-OFC-8, Assistant Secretary for Employment Standards Order, July 19, 1995, at 2.

Neither an ALJ nor the Secretary has the authority, absent an explicit grant by statute, to impose the personal sanctions provided for in the Federal Rules of Civil Procedure, e.g., requiring payment of attorneys' fees and costs or holding an individual in contempt for failure to comply with a subpoena. Ibid.

The ALJ had no authority to issue the sanctions order, rather, his authority to regulate discovery and the conduct of parties and their representative is limited to that provided in the regulations. Id. at 3.

The Assistant Secretary does have the authority to review an ALJ's order imposing sanctions for failure to comply with the regulations where it is material to the issues decided in a recommended decision. Id. at 3, n.1.

The Assistant Secretary may review the propriety of the sanction or take other action provided for in the regulations. The Assistant Secretary may debar a contractor for refusal to comply with the discovery regulations. Ibid.

The Equal Access to Justice Act, 5 U.S.C. §504 (1988), amounts to a partial waiver of sovereign immunity and renders the United States liable for fees only when the party seeking to obtain them has been subjected by the agency to an "adversary adjudication" and has prevailed against the agency. OFCCP v. Jacobi-Lewis Company, Inc., 88-OFC-18, Assistant Secretary for Employment Standards, Final Decision and Order, May 2, 1995, at 4-5.

Fed. R. Civ. P. 11 does not afford an award of attorneys fees, in actions brought under Section 503 of the Rehabilitation Act. Absent some other explicit authority for assessing fees against the government, the request for fees must be disallowed. Id. at 10.

Fed. R. Civ. P. 11 alone cannot provide a basis for waiver of sovereign immunity. It is the Equal Access to Justice Act ("EAJA"), 5 U.S.C. §504 (1988), that waives the government's sovereign immunity. Id. at 10.

The ALJ held, that absent a violation of a court order compelling responses to OFCCP's discovery requests and given that American's opposition to the requests is substantially justified, OFCCP's request to award expenses and attorney's fees incurred by OFCCP in seeking this order is denied. OFCCP v. American Airlines, Inc., 94-OFC-9, ALJ Order on Plaintiff's Motion to Compel Responses and for Admissions, January 19, 1995, at 11.