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.

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An administrative agency is without jurisdiction to resolve questions as to the constitutionality of an act or regulations that it administers. OFCCP v. E.E. Black, Ltd., 77-OFCCP-7R, ALJ Rec. Dec., September 13, 1978, slip op. at 9, aff'd, Assistant Secretary for Employment Standards, February 26, 1979, aff'd on other grounds, E.E. Black v. Marshall, 497 F. Supp. 1088 (D. Hi. 1980), E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

Congress invested the DOL with the authority to initiate enforcement action under the Act and to determine the merits of the charges so presented. OFCCP v. E.E. Black, Ltd., 77-OFCCP-7R, Assistant Secretary for Employment Standards Order Denying Motion to Disqualify the Secretary of Labor, the Assistant Secretary and the U.S. Department of Labor, February 26, 1979, slip op. at 5.

An agency employee may institute proceedings and render a decision on the case provided that the individual has not investigated or prosecuted the case. Id. at 6.

Even though the Secretary of Labor supervises officials engaged in the investigation, prosecution and decision making in the case, he is not disqualified from participating in the decision of a proceeding. Id. at 6-7.

Regulations promulgated pursuant to the Act do not disqualify the Assistant Secretary from rendering a decision under the Act. Id. at 7.

Secretary did not participate in the decision of the case so his statements about the proceedings did not disqualify him. Id. at 9.

Statements made by the Secretary about the case were not of such a nature as to disqualify him even if he had participated in the decision. Id.

Assistant Secretary's public comments did not concern the merits of this proceeding and therefore did not disqualify him. Id. at 10.

An administrative tribunal is without jurisdiction to investigate the validity of OFCCP regulations which implement the Rehabilitation Act. OFCCP v. American Airlines, 79-OFCCP-2, ALJ Rec. Dec., June 30, 1980, slip op. at 6, aff'd, Deputy Under Secretary for Employment Standards, May 2, 1985.

The definition of "handicapped individual" contained in the Act and the regulations is not unconstitutionally vague. E. E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1097-98, (D. Hi. 1980), reconsideration denied, E.E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

The Department of Labor had no authority to exercise its enforcement power under the Act prior to the promulgation of the implementing regulations. OFCCP v. Western Electric Co. 80-OFCCP-29, ALJ Rec.Dec., March 4, 1981, slip op. at 4, rev'd and remanded on other grounds, Deputy Under Secretary for Employment Standards, April 24, 1985.

The ALJ and Assistant Secretary have the power to decide if an employer has violated Section 503 and the implementing regulations, but may not determine the underlying validity of the regulations. OFCCP v. Western Electric Co., 80-OFCCP-29, Deputy Under Secretary for Employment Standards Remand Dec., April 24, 1985, slip op. at 13, rev'g and remanding, ALJ Rec. Dec., March 4, 1981.

For purpose of administrative enforcement proceedings, the validity of the waiver provision in former 20 CFR 60-741.25(a)(5) must be assumed. Id.

Where an overlap of jurisdiction occurs, the agency exercising its authority cannot take actions which impinge on another Federal agency's jurisdiction. The fact that there is overlap of jurisdiction between Department of Transportation truck driver qualifications and Rehabilitation Act's prohibition against handicap-based discrimination does not necessarily constitute an intrusion into another agency's jurisdiction. OFCCP v. Yellow Freight Systems, Inc., 79-OFCCP-7, Deputy Under Secretary for Employment Standards Decision and Order of Remand, April 8, 1987, slip op. at 13., rev'g and remanding, ALJ Rec. Dec., June 30, 1982, remanded on other grounds, Special Assistant to the Assistant Secretary, August 24, 1992; Consent Decree, February 2, 1993.

Requiring that the OFCCP wait until the DOT has ruled on the qualifications of drivers who fail to meet carriers' additional requirements before it can institute proceedings preempts jurisdiction of the Rehabilitation Act and deprives drivers of remedies provided through Section 503, i.e., back pay, lost fringe benefits, reinstatement, which are not available under the Motor Carrier Act. Id. at 17-19, rev'g and remanding, ALJ Rec. Dec., June 30, 1982, remanded on other grounds, Special Assistant to the Assistant Secretary, August 24, 1992; Consent Decree, February 2, 1993.

The OFCCP concedes that the DOT has authority to set minimum qualification standards for drivers. OFCCP and DOT have concurrent jurisdiction over job qualifications imposed by the carrier which are more stringent than those required by DOT. Id. at 10, rev'g and remanding, ALJ Rec. Dec., June 30, 1982, remanded on other grounds, Special Assistant to the Assistant Secretary, August 24, 1992; Consent Decree, February 2, 1993.

Where drivers have been found to be qualified under DOT standards, they also meet the definition of qualified handicapped individuals under the Rehabilitation Act. Id. at 19, n.13, remanded on other grounds, Special Assistant to the Assistant Secretary, August 24, 1992; Consent Decree, February 2, 1993.

The 180-day time limit for filing a complaint is not jurisdictional. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec. and Order, November 9, 1982, slip op. at 17; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Section 503 of the Rehabilitation Act is not an unconstitutional taking in violation of the due process clause. The statute does not take anything, it just requires the defendant to comply with its duties. Id. at 26; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Section 503 of the Rehabilitation Act is not unconstitutionally vague. The statute is clear on its face and as applied. Id.; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

ALJ's have jurisdiction to determine employment standards in railroad cases. Id. at 60; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Where jurisdiction is based upon a Federal statute, the plaintiff has the burden to plead and prove facts sufficient to establish jurisdiction. OFCCP v. Burlington Northern Railroad Co., 81-OFCCP-21, ALJ Dec. on Motions and Prehearing Order, February 8, 1984, slip op. at 4; Consent Decree, August 27, 1984.

The Secretary has broad authority under the Act to take such action on complaints as the facts and circumstances warrant and may grant such relief as is supported by the record regardless of the limitations of the pleadings in the case. OFCCP v. Missouri Pacific Railroad, 81-OFCCP-8, Deputy Under Secretary for Employment Standards, August 12, 1985, slip op. at 2.

The Secretary of Labor can void regulations only by proper rulemaking pursuant to the Administrative Procedure Act. OFCCP v. Ozark Air Lines, Inc., 80-OFCCP-24, Deputy Under Secretary for Employment Standards Final Dec. and Order, June 13, 1986, slip op. at 5.

An administrative law judge does not have the authority to declare agency regulations invalid, therefore, the ALJ declined to rule on the defendant's contention that 41 CFR 60-741.2(a)(5) is invalid as exceeding the enabling legislation. OFCCP v. PPG Industries, Inc., 86-OFC-9, ALJ Rec. Dec. and Order, May 17, 1988, slip op. at 9, aff'd on other grounds, Deputy Assistant Secretary Final Decision and Order, January 9, 1989; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

Challenges to the constitutionally or validity of OFCCP regulations are ALJ's jurisdiction. There is no aspect of the Rehabilitation Act or its implementing regulations which presents a conscience-shocking situation such as would impel a departure from generally accepted administrative jurisdictional parameters. OFCCP v. Yellow Freight System, Inc., 79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988, slip op. at 3, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

The defendant's arguments concerning the scope of the Act's coverage, and the inconsistency between the Act and the waiver regulation were previously considered in OFCCP v. Western Electric Co. [citation omitted]. The defendant did not offer any reason to persuade the ALJ that the conclusion that "an agency must honor its own regulation unless and until it has rescinded or amended it after rulemaking proceedings," should be changed. OFCCP v. PPG Industries, Inc., 86-OFC-9, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1989, slip op. at 9; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

With respect to the defendant's argument that the Acting Secretary's decision is contrary to the Tenth Amendment, administrative agencies are not competent or authorized to decide whether statutes are constitutional. [Citations omitted.] The Department of Labor is obligated to consider the laws at issue here [Section 503] as constitutional. OFCCP v. University of North Carolina, 84-OFC-20, Secretary of Labor Order Denying Stay, April 25, 1989, slip op. at 5, aff'd on other grounds, Board of Governors of the University of North Carolina v. United States Department of Labor, 917 F. 2d 812 (4th Cir. 1990), cert. denied, 500 U.S. 916(1991).

The ALJ must preserve the validity and constitutionally of the statute and regulations under consideration. OFCCP v. City Public Service of San Antonio, 89-OFC-5, ALJ Rec. Dec. and Order, April 4, 1990, slip op. at 3; reversed and remanded on other grounds, Assistant Secretary for Employment Standards Decision and Remand Order, January 18, 1995; Consent Order dismissing case, February 5, 1996.

The ALJ and the Secretary have jurisdiction to determine if a regulation is applied in violation of the Fourth Amendment. Ibid.; reversed and remanded, Assistant Secretary for Employment Standards Decision and Remand Order, January 18, 1995; Consent Order dismissing case, February 5, 1996.

It is arguable that the work-on-the-contract issue is jurisdictional in nature, i.e., subject matter jurisdiction and, thus, not subject to waiver or stipulation. OFCCP v. Yellow Freight Systems, Inc., 79-OFCCP-7, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, August 24, 1992, slip op. at 6; Consent Decree, February 2, 1993.

Where it is apparent, the Assistant Secretary is obliged to notice lack of subject matter jurisdiction sua sponte. Id. at 7. Regardless whether the working-on-the-contract issue is a matter of jurisdiction not subject to waiver or stipulation, or in the nature of a defense subject to waiver, OFCCP failed to demonstrate in the proceeding before the ALJ that complainants would have worked on defendant's Federal contracts. Id. at 7-8.

In light of WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. l99l), the parties are directed to file additional briefs with the Assistant Secretary addressing whether the WMATA decision "bears on the Department's jurisdiction to proceed with review of the case." OFCCP v. Yellow Freight Systems, Inc., 82-OFC-2, Acting Assistant Secretary for Employment Standards Order, August 20, 1993, slip op. at l-2; remanded, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

The issue of whether the Equal Access to Justice Act (EAJA) applies to a particular proceeding depends on whether a particular proceeding constitutes an adversary adjudication and is jurisdictional in nature, and not subject to notions of waiver and estoppel, and can be raised at any stage of the proceeding. Moreover, where apparent the Assistant Secretary is obliged to notice want of jurisdiction on his own motion. OFCCP v. Jacobi-Lewis Company, Inc., 88-OFC-18, Assistant Secretary for Employment Standards, Final Decision and Order, May 2, 1995, at 5.

An administrative action cannot be maintained nor sanctions be imposed, if the Department of Labor exceeds its authority in pursuit of an action to benefit individual workers. Hence the question of jurisdiction must be resolved. Commonwealth Aluminum Corp. v. U.S. Department of Labor, et al., No. 94-0071-0 (C), (W.D.Ky. September 6, 1996) at 2-3.

Because the Assistant Secretary held that OFCCP may seek relief on behalf of individuals found to have been subject to handicap discrimination once a complaint had been filed, the Assistant Secretary saw no need to address the contention that no complaint is necessary to confer jurisdiction on OFCCP to investigate and take enforcement action on behalf of individuals. OFCCP v. Commonwealth Aluminum, 82 OFC-6, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994,at 9, n.4; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The Assistant Secretary held that 41 C.F.R. §60-741.26(a) providing that a complaint [alleging discrimination under Section 503] must be filed within 180 days from the date of the alleged violation is not jurisdictional. OFCCP v. CSX Transportation, Inc., 88-OFC-24, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994 at 7-8, n.6; case closed, January 17, 1996.

The issue of "working on the Contract" is one of subject matter jurisdiction, which cannot be presumed. OFCCP v. Texas Industries,Inc., 80-OFCCP-28, Assistant Secretary Decision and Order of Remand, January 27, 1995, at 1-3; Consent Decree, June 21, 1996.

Although neither party raised the carry out the contract issue before the ALJ or the Assistant Secretary, the Assistant Secretary is required to address the issue before the case can proceed. Id. at 3.

Work-on-the-Contract is a matter of subject matter jurisdiction. OFCCP v. Texas Utilities Generating Co., 85-OFC-13, Assistant Secretary for Employment Standards Decision and Order of Remand, August 25, 1994 at 4-6; Consent Decree, April 15, 1996.

Although neither party raised the work on the contract issue before the ALJ or the Assistant Secretary, the Assistant Secretary is required to address it before the case can proceed. Id. at 6; Consent Decree, April 15, 1996.

Subject matter jurisdiction must be established before an allegation of discrimination under Section 503 of the rehabilitation Act can be litigated. Once such jurisdiction is established, a Section 503 action may proceed to litigation on the merits. OFCCP v. Norfolk Southern Corporation, 89-OFC-31, Assistant Secretary for Employment Standards Decision and Order of Remand, October 3, 1995, at 4-5.

The working-on-the-contract issue is jurisdictional and must be specifically addressed by the ALJ prior to proceeding to the merits. Id. at 5.

Jurisdiction cannot be presumed, even if it is not raised by the parties. Id. at 5.

A judicial decision of a state administrative agency has a preclusive effect on a subsequent Section 503 proceeding, . . . , only if the federal tribunal has first determined that preclusion itself is consistent with Congressional intent. Id. at 6-7, n.4.

"[T]he question is not whether administrative estoppel is wise but whether it is intended by the legislature. . . . Thus, where a common-law principle is well established, as are the rules of preclusion, the courts may take it as a given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident.'" Id. at 8, citing Astoria Federal Savings and Loan Association v. Solimino, 501 U.S. 104, 108 (1991).

According estoppel effects to handicap discrimination decisions of state agencies acting under state laws would vitiate and be inconsistent with the Congressional policy for "a consistent, uniform and effective Federal approach to discrimination against handicapped persons" since estoppel would result in the forced Federal acceptance and Recognition under Section 503 of separate and diverse standards of compliance, remedial relief, and crucial litigation matters, such as the establishment of a prima facie case and burden of proof. Id. at 10.

According estoppel effects to state agency decisions would threaten the uniformity of the §503 system, and unnecessarily establish a further limitation on Section 503 beyond its statutory scope, . . . "to promote and expand employment opportunities for the handicap." Id. at 10-11, n.6.

A decision by an arbitrator in favor of the company on the union's grievance concerning the company's removal of the complainant from active duty and retention on sickness benefits does not divest OFCCP of jurisdiction in this case, nor do principles of collateral estoppel or res judicata apply. OFCCP v. American Telephone and Telegraph Company (AT&T), 92-OFC-5, ALJ Order Denying Defendant's Motion for Summary Judgment and Granting in part Defendant's Motion in Limine, April 23, 1995, at 6-8.

A labor arbitrator has only authority to resolve questions of contractual rights. [H]is task is to "effectuate the intent of the parties." [H]e lacks "general authority to invoke public laws that conflict with the bargain between the parties," such as Title VII [or Section 503]. Id. at 7.

Even had the arbitrator's decision not been made pursuant to a collective bargaining agreement, OFCCP may still bring an action in its role as a Government agency. The principles of res judicata or collateral estoppel do not apply to such an action based on an arbitrator's decision. Id. at 7.

Defendant's argument that OFCCP lacks subject matter jurisdiction because ERISA preempts, the Act is wholly without merit. Id. at 8.

Jurisdiction cannot be presumed. OFCCP v. Keebler Company, 87-OFC-20,Assistant Secretary for Employment Standards, Decision and Order of Remand, December 21, 1994, at 3.

To the extent that First Federal seeks to challenge the constitutionality of Executive Order 11246, its implementing regulations, or the exercise of discretion by OFCCP, such a challenge is appropriate not in these proceedings, but in a district court action instituted after the Secretary renders a final decision on this claim. Thus, the ALJ held that as no final agency action has been taken, an appeal to the district court at this time would be premature. See Administrative Procedure Act 5 U.S.C. § 704. OFCCP v. First Federal Savings Bank of Indiana, 91-OFC-23, ALJ Order Denying Defendant's Post-Hearing Motion, June 29, 1994,at 7; affirmed on other grounds, Secretary of Labor, Amended Final Decision and Order, November 20, 1995.

Issues of constitutionality are beyond the jurisdiction of administrative agencies. OFCCP v. First Federal Savings Bank of Indiana, 91-OFC-23, ALJ Recommended Decision & Order, June 29, 1994, at 6; affirmed on other grounds, Secretary of Labor, Amended Final Decision and Order, November 20, 1995.

Jurisdiction cannot be presumed. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986). OFCCP v. United Airlines, Inc., 86-OFC-12, Assistant Secretary for Employment Standards, Decision and Order of Remand, December 22, 1994, at 3-4.

The Assistant Secretary remanded the case to the ALJ for appropriate findings on the "working-on-the-contract" issue, and held that, "[a]lthough the "working-on-the-contract" jurisdictional issue was not raised or addressed below or in the pleadings filed subsequent to the [ALJ] Recommended Decision and Order, I am required to address this matter before the case can proceed." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990). Id. at 4-5.

In remanding the case to the ALJ for further proceedings to determine whether coverage existed during the relevant periods for the individuals for whom OFCCP continues to seeks relief, the Acting Assistant Secretary held, that "[s]ince the ALJ's coverage holding was based upon a provision of a regulation which has since been declared inconsistent with the language of Section 503 at the times of the alleged violations, the question of jurisdiction must be remanded to the ALJ to give OFCCP an opportunity to introduce further evidence, if necessary, to satisfy the new legal standard in WMATA. . . . If OFCCP can establish coverage, I have an obligation under the statute to ultimately decide the entire action." OFCCP v. Southern Pacific Transportation Company, 79-OFC-10A, et.al., Acting Assistant Secretary for Employment Standards, Decision and Order of Remand, February 24, 1994, at 7-8; Consent Order, October 13, 1995.

The Assistant Secretary considered the issue of jurisdiction or coverage raised by Yellow Freight's Motion for Reconsideration pivotal in determining whether Section 503 was violated vis-a-vis Mr. Quick. "Obviously, if he was not covered by Section 503, Yellow Freight could not have violated Section 503 towards him. . . . Accordingly, on remand it is only proper that the ALJ also be directed, . . . , to rule upon the jurisdictional defense that the Plaintiff has failed to prove jurisdiction under the Washington Transit case." OFCCP v. Yellow Freight System, Inc., 84-OFC-17, Acting Assistant Secretary for Employment Standards, Reconsideration of Final Decision and Order of Remand, December 22, 1993, at 3 n.2; Order Approving Settlement and Dismissal, April 20, 1994.

Noting that the ALJ's Recommended Decision and Order made no specific findings on the jurisdictional or coverage issue of working-on-the-federal-contract as applied to Mr. Quick's employment, the Assistant Secretary held that he was not precluded from ruling on the jurisdictional or coverage issue here, and would be remiss in avoiding this issue. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986). Id. at 6-8.

The Assistant Secretary expanded and modified his July 27, 1993, Final Decision and Order of Remand to require that the ALJ hearing and the resulting recommended decision . . . first and clearly specifically address the working-on-the-contract jurisdictional or coverage issue as applied to Mr. Quick. Id. at 8.