Respondent's counsel asserts that it cannot join in Complainant's motion because the Complainant has failed to identify any statutory authority for an ALJ to issue a subpoena under any of the employee protection statutes, and that such authority does not exist. The claim before me involves six whistleblower statutes: the Clean Air Act, 42 U.S.C. § 7622; the Safe Drinking Water Act, 42 U.S.C. § 300j-9; the Solid Waste Disposal Act, 42 U.S.C. § 6971; the Water Pollution Control Act, 33 U.S.C. § 1367; the Toxic Substance Control Act, 15 U.S.C. § 2622; and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9610. There is no express provision for the issuance of subpoenas within any of these statutes, nor in the Department of Labor's Procedures for the Handling of Discrimination Complaints under Federal Employee Protection Statutes found at 29 CFR Part 24. Proceedings before OALJ are also governed by the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges found at 24 CFR Part 18. The rule regarding subpoenas provides in pertinent part:

(a) Generally. . . . the Chief Administrative Law Judge or the presiding administrative law judge, as appropriate, may issue subpoenas as authorized by statute or law upon written application of a party requiring attendance of witnesses and production of relevant papers, books, documents, or tangible things in their possession and under their control. . . .
. . .
(c) Motion to quash or limit subpoena. Within ten (10) days of receipt of a subpoena but no later than the date of the hearing, the person against whom it is directed may file a motion to quash or limit the subpoena . . .
(d) Failure to comply. Upon the failure of any person to comply with an order to testify or a subpoena, the party adversely affected by such failure to comply may, where authorized by statute or by law, apply to the appropriate district court for enforcement of the order or subpoena.

29 CFR § 18.24.

   The Administrative Review Board ("ARB" or "Board") has been delegated the authority to act for the Secretary of Labor by reviewing recommended decisions of ALJs and issuing final decisions in whistleblower cases. 29 CFR § 24.8. Although there is no express subpoena authority in the employee protection statutes, in Childers the ARB concluded that where the enabling statute requires that an agency provide for a formal hearing ("on the record after notice and an opportunity for a public hearing"), then it follows that subpoena authority is encompassed

in such administrative adjudication, "whether mentioned in the enabling legislation or not." Childers at 8-9. The Board stated,

    The proposition that statutory mandates to provide formal trial type hearings encompasses subpoena authority is entirely consistent with the more general proposition that formal agency adjudications should be conducted much like trials in Article III courts. "[W]hen governmental agencies adjudicate or make binding determinations which directly affects the legal rights of individuals, it is imperative those agencies use the procedures which have traditionally been associated with the judicial process." Hannah v. Larche, 363 U.S. 420, 442, 80 S. Ct. 1502, 1514 (1960).

Childers at 9 (footnote omitted). Each of the six whistleblower statutes at issue in this claim provides for an Order by the Secretary on the record after notice and an opportunity for a public hearing. This hearing is of the formal type that is referred to in Childers, and it therefore follows that my authority to issue subpoenas is encompassed therein.

   Additionally, the Board found that the adjudicating agency would be entitled to use subpoenas simply by the virtue of the agency's discretion to choose procedural mechanisms. Childers at 10. Specifically, 24 CFR § 18.29(a) grants an ALJ all the powers necessary to conduct a fair and impartial hearing. The Board also concluded that the inability to punish noncompliance with contempt sanctions is irrelevant to the power to issue the subpoena. Childers at 12. Moreover, an ALJ is granted subpoena authority "where authorized by statute or law." See the Administrative Procedure Act, 5 U.S.C. §§ 555(d) and 556(c)(2); and 29 CFR § 18.24(a). The ARB concluded that the phrase "authorized by law" does not require express authorization in individual statutes. Childers at 6-8 and 13-14. Since the Board has found that an ALJ has inherent power to issue subpoenas when a statute requires a formal adjudicative proceeding, it follows that Childers and 29 CFR § 18.24(a) provide the basis for my exercise of authority to issue the subpoena in controversy in this case.

   Having determined that authority to issue subpoenas does exist in this case pursuant to Childers and 29 CFR § 18.24(a), I next turn to the relief the Complainant seeks in his motion. Complainant's counsel invokes Rule 45 of the Federal Rules of Civil Procedure and requests that Mr. Shabazz be ordered to testify because his testimony is necessary to ensure that the Complainant's rights are not compromised. Respondent's counsel asserts that the OALJ has no authority to enforce its administrative subpoenas. Additionally, the EPA opposes the Complainant's motion stating that it has the ability to prohibit its employees from complying with subpoenas.

   I conclude that Rule 45 does not apply, and as the law has developed thus far, an ALJ does not have the authority to enforce an administrative subpoena. Any agency that concludes contempt sanctions are necessary to compel the appearance of a witness or production of documents must petition for enforcement of its subpoena in the appropriate district court. See 5 U.S.C. § 555(d); Childers at 12; 29 CFR § 18.29(b). The rules governing hearings before the OALJ provide that the Federal Rules of Civil Procedure "shall be applied in any situation not provided for or controlled by these rules," 29 CFR § 18.1. Two OALJ rules provide for enforcing subpoenas. 29 CFR § 18.24(d),

quoted above, authorizes the party adversely affected by failure to comply with a subpoena "where authorized by statute or by law" to apply to a district court for enforcement of the subpoena. 29 CFR § 18.28(b) contains a similar provision for ALJ's:

If any person in proceedings before an adjudication officer . . . refuses to appear after having been subpoenaed . . . the administrative law judge responsible for the adjudication, where authorized by statute or law, may certify the facts to the Federal District Court having jurisdiction in the place in which he or she is sitting to request appropriate remedies.

Because the OALJ rules specifically provide for enforcement of subpoenas by a court upon application by a party or certification by an ALJ, those rules, rather than Fed. R. Civ. Pro. 45, govern enforcement of the subpoena to Mr. Shabazz. Because the authority to enforce the subpoena lies with the district court, the question of whether the EPA has the ability to prohibit its employee from complying with the subpoena is not properly before me, but may be raised with the appropriate district court in an enforcement action. If the Complainant still wishes to seek enforcement of the subpoena, he should apply to the U.S. District Court for the District of Columbia.

   IT IS HEREBY ORDERED that Complainant's Motion to Order Testimony of Mikal Shabazz is DENIED because an ALJ does not have the authority to enforce the subpoena. Pursuant to 29 CFR § 18.24(d), the Complainant may apply to the appropriate district court to seek enforcement of the subpoena.

      Alice M. Craft
      Administrative Law Judge