[Last Updated Dec. 10, 2007]

CONTENTS

PIPELINE SAFETY IMPROVEMENT ACT

IMMIGRATION - H-1B WORKERS

E-DISCOVERY

TITLE VII

ATTORNEY DISCIPLINARY PROCEEDINGS

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TIMELINESS OF PETITION FOR JUDICIAL REVIEW OF AGENCY DECISION; TOLLING BASED ON FILING OF MOTION FOR RECONSIDERATION WITH THE AGENCY

In Saban v. USDOL, No. 06-2837 (7th Cir. Dec. 4, 2007) (case below ARB No. 03-143, ALJ No. 2003-PSI-1), the Seventh Circuit held that the Complainant’s petition for review of the ARB’s denial of his Pipeline Safety Improvement Act whistleblower claim was timely where, although he did not file the petition within 60 days of the ARB’s decision denying the claim, he had filed a timely motion for reconsideration with the ARB and then filed his petition for review within 60 days after the Board denied that motion. The court expressed concern that Supreme Court rulings to the effect that the filing of a motion for reconsideration with the agency tolled the time for filing a petition for judicial review had been thrown into doubt by the Supreme Court decision in Darby v. Cisneros, 509 U.S. 137, 145-47 (1993) (citing section 10(c) of the Administrative Procedure Act), but found that it was bound by the earlier Supreme Court authority.

RETROACTIVE APPLICATION OF WHISTLEBLOWER PROVISION OF THE PSIA

The whistleblower provision of the Pipeline Safety Improvement Act does not have restroactive effect. Saban v. USDOL, No. 06-2837 (7th Cir. Dec. 4, 2007) (wrongful termination took place more than three years before the PSIA was passed).

RETROACTIVE APPLICATION OF THE WHISTLEBLOWER PROVISION OF THE PIPELINE SAFETY IMPROVEMENT ACT

In Saban v. Morrison Knudsen, ARB No. 03-143, ALJ No. 2003-PSI-1 (ARB Mar. 30, 2005), the ARB affirmed the ALJ's holding that since the alleged adverse action predated the effective date of the whistleblower protection provision of the Pipeline Safety Improvement Act of 2002, and since Congress did not intend that the Act be applied retroactively, the complaint should be dismissed. See Landgraf v. USI Film Products, 511 U.S. 244 (1994).

PSI INTERIM FINAL RULE

On April 5, 2004, OSHA published an Interim Final Rule stating Procedures for the Handling of Discrimination Complaints under Section 6 of the Pipeline Safety Improvement Act of 2002, Interim Final Rule, 69 Fed. Reg. 17587 (Apr. 5, 2004). The regulations are similar to the regulations implementing AIR21, nuclear and environmental, and STAA whistleblower laws.

RETROACTIVE APPLICATION

In Saban v. Morrison Knudsen, 2003-PSI-1 (ALJ July 25, 2003), the ALJ found that the statutory language and Congressional history of section 60129 of the Pipeline Safety Improvement Act evidenced no intent by Congress for retroactive application. Accordingly, where Complainant's complaint was about circumstances that occurred in 1999 but the PSI whistleblower provision did not become effective until December 17, 2002, the ALJ granted Respondent's motion to dismiss.

PROTECTED ACTIVITY; WORK REFUSAL LOOSES PROTECTION ONCE PERCEIVED HAZARD INVESTIGATED, FOUND SAFE, AND ADEQUATELY EXPLAINED TO THE EMPLOYEE

In Rocha v. AHR Utility Corp., 2006-PSI-1 to 4 (ALJ July 25, 2007), the Complainants were experienced welders who refused to continue welding pipe for a gas line that would cross over an Interstate highway based on their belief that if they installed the pipe as requested, a safety risk to the public would result. The ALJ found that the Complainants held this belief in good faith, and that a reasonable person with the Complainants' experience and training would have, under the circumstances, believed that the pipe was unsafe to install in the gas line. The pipe had been left outside for a long period of time and was heavily corroded. The ALJ also found, however, that the representatives of the Respondents and the state DOT took the Complainants' concerns very seriously, and confirmed with engineering staff that the pipe was acceptable. Moreover, they authorized the Complainants to cut back on pipe ends without limit to find acceptable weld locations. The ALJ found that this proposal appeared to have met the Complainants' safety and quality concerns, and fulfilled the Respondents' duty to respond to the Complainants' good faith work refusal. The ALJ found that "any protection the Complainants would have had for their work refusal ceased when they failed to give further explanation or make a further inquiry into the adequacy of respondents' response to their concerns." Slip op. at 12-13 (citing Stockdill v. Catalytic Indust. Maint. Co., Inc., 1990-ERA-43, at 3 (Sec'y Jan. 24, 1996).

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DEBARMENT AND CIVIL PENALTIES; IMPOSITION AGAINST VETERANS AFFAIRS MEDICAL CENTER AGAINST PUBLIC POLICY

In Talukdar v. U.S. Dept. of Veterans Affairs Medical & Regional Office Center, Fargo, ND, 2002-LCA-25 (ALJ Apr. 12, 2004), the ALJ found that the Respondent violated the anti-discrimination provision of the H-1B labor condition application regulations when it discharged two physicians after they had cooperated with a DOL investigation into whether prevailing wages had been paid to H-1B workers. Although the ALJ ordered reinstatement, back pay, relocation expenses for one of the Complainants, and expungement of a retaliatory proficiency report in one of the Complainant's personnel files, she declined to impose civil penalties and debarment from participation in the H-1B LCA program where the Respondent was a VA medical center. The ALJ stated: "...I conclude that these remedies are inappropriate against this Respondent, a publicly funded veterans' medical center with chronic budget struggles, which needs H-1B physicians to provide care for its patients."

REINSTATEMENT; FACILITY AT WHICH OFFER MUST BE MADE; REJECTION OF OFFER TERMINATES BACK PAY LIABILITY

In Talukdar v. U.S. Dept. of Veterans Affairs Medical & Regional Office Center, Fargo, ND, 2002-LCA-25 (ALJ Apr. 12, 2004), two physician-Complainants indicated a preference not to be reinstated to the same facility at which the retaliatory conduct occurred. The ALJ, however, found that the Respondent could offer reinstatement at the same facility or another mutually agreeable facility. The ALJ noted that the Complainants were free to accept or reject the offer of reinstatement, albeit back pay would terminate as of the date of a rejection of a reinstatement offer.

RETALIATION FOR COOPERATION WITH H-1B PREVAILING WAGE INVESTIGATION; PROXIMITY OF PROTECTED ACTIVITY TO ADVERSE ACTION; BUDGETARY LIMITATIONS AS PRETEXT

In Talukdar v. U.S. Dept. of Veterans Affairs Medical & Regional Office Center, Fargo, ND, 2002-LCA-25 (ALJ Apr. 12, 2004), the ALJ found that two physicians were fired from a Veterans Affairs medical center (VAMC) because they provided information to an investigator for the Department of Labor who performed an audit of VAMC's H-1B visa program in January 2001. Under the Immigration and Nationality Act, an employer seeking to hire an alien in a specialty occupation on an H-1B visa must obtain certification from the U.S. Department of Labor ("DOL") by filing a Labor Condition Application ("LCA). 8 U.S.C. § 1182(n). The DOL is responsible for investigating complaints that an employer has failed to comply with the terms of the LCA, or has failed to pay the appropriate wage rate. 8 U.S.C. § 1182(n)(2). Subsection (n)(2)(C)(iv) provides that it is a violation of the Act for an employer to discriminate against an employee who discloses information about or cooperates with an investigation of a violation of the Act's requirements. According to the regulatory history of the implementing regulations -- because the language and intent of this provision are similar to the employee protection provisions contained in the nuclear and environmental whistleblower statutes administered by DOL, the same analysis applies. 65 Fed. Reg. 80178 (2000); see Administrator v. IHS Inc., 1993-ARN-1 (ALJ Mar. 18, 1996).

The two physician-Complainants involved were not H-1B workers themselves, but participated in advocacy on behalf of VAMC H-1B physicians in their leadership roles in the physicians' union. The ALJ found that although the H-1B advocacy extended over a period of time, the proximate events leading up to the Complainants' discharges transpired over a period of less than two months as the H-1B issue came to the forefront. The ALJ found that this proximity established a nexus between the protected activity and the adverse employment action. The ALJ found that the Respondent's proffered legitimate non-discriminatory reason -- budgetary problems -- was not credible and was a pretext for retaliation for the Complainants participation in the DOL H-1B investigation. The ALJ analyzed the Respondent's past practices vis-a-vis budgetary limitations and found that terminating the employment of physicians had never been the way in which such problems were addressed. The ALJ also rejected an additional suggestion that performance was an issue with one of the Complainants where this reason was proffered after-the-fact, and where the negative performance appraisal was inconsistent with four previous appraisals and did not match or distorted the duties assigned.

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DISCOVERY; ELECTRONIC RECORDS; E-MAIL

Judge Shira A. Scheindlin of the U.S. District for the Southern District of New York issued a series of rulings in 2003 involving discovery of electronic records and e-mail in Zubulake v. UBS Warburg LLC, No. 02 Civ 1243. The Plaintiff's suit is grounded in Federal, State and City law for gender discrimination and illegal retaliation. Discovery in the case has focused on Plaintiff's contention that key evidence is located in various e-mails that now exist only on backup tapes and possibly on other archived media. Although practice under the FRCP may differ in significant respects from practice under USDOL rules, Judge Scheindlin rulings in the Zubulake case provide significant background in regard to electronic discovery generally:

• Zubulake v. UBS Warburg LLC, No. 02 Civ 1243 (SDNY May 18, 2003) (discussion of the problem of balancing the competing needs of broad discovery and manageable costs; Defendant had declined to search back-up tapes for deleted e-mails because of the cost; accessible and inaccessible data; cost-shifting analysis -- 7 factors).

• Zubulake v. UBS Warburg LLC, No. 02 Civ 1243 (SDNY May 18, 2003) (in deposition of Defendant's electronics records manager - designated by Defendant as confidential - Plaintiff became concerned that certain of Defendant's records management practices were in violation of the SEA and SEC rules and requested leave to report her concerns on the ground that, as a licensed broker, she has an ethical obligation to report such matters; the court, however, found that Plaintiff had not established a clear duty to report and that an apparent attempt to gain leverage in the law suit was an improper motive and not grounds for removing the confidential designation).

• Zubulake v. UBS Warburg LLC, No. 02 Civ 1243 (SDNY July 24, 2003) (application of cost-shifting analysis following sample restoration of subgroup of backup tapes).

• Zubulake v. UBS Warburg LLC, No. 02 Civ 1243 (SDNY Oct. 22, 2003) (available at 2003 WL 22410619) (consideration of sanctions for failure to preserve electronic records; trigger date for duty to preserve attaches at the time that litigation becomes reasonably anticipated; scope of preservation of relevant documents; whose documents must be retained; what must be retained; elements to establish entitlement to adverse inference instruction -- obligation to preserve, culpable state of mind, relevance of destroyed documents).

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ADVERSE EMPLOYMENT ACTION; REQUIREMENT OF A MATERIALLY ADVERSE CHANGE IN TERMS OF EMPLOYMENT

In a Title VII action, White v. Burlington Northern & Santa Fe Railway Co., 2004 Fed. App. 0101P (6th Cir. Apr. 14, 2004), the Sixth Circuit reviewed that circuit's law on the meaning of an "adverse employment action." The court stated that Kocsis v. Multi-Care Management Inc., 97 F.3d 876 (6th Cir. 1996), is the seminal case in the 6th Circuit for defining adverse employment action. The court wrote:

    In Kocsis v. Multi-Care Management Inc., this court considered the definition of adverse employment action in the context of a discrimination claim under the Americans with Disabilities Act. 97 F.3d 876, 885-87. Relying in part upon the Seventh Circuit's definition, this court held that a plaintiff claiming employment discrimination must show that she suffered "a materially adverse change in the terms of her employment." Id. at 885 (citing Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883 (7th Cir. 1989), which involved an age discrimination claim). A "mere inconvenience or an alteration of job responsibilities" or a "bruised ego" is not enough to constitute an adverse employment action. Id. at 886 (citing Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993), and Flaherty v. Gas Research Inst., 31 F.3d 451, 456 (7th Cir. 1994)).

    Furthermore, according to Kocsis, "reassignments without salary or work hour changes do not ordinarily constitute adverse employment decisions in employment discrimination claims." Id. at 885 (citing Yates, 819 F.2d at 638, which applied to "temporary" reassignments). A reassignment without salary or work hour changes, however, may be an adverse employment action if it constitutes a demotion evidenced by "a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Id. at 886 (citing Crady, 993 F.2d at 136).

In White, the Plaintiff and the EEOC as amicus argued that the court should revise its definition to adopt the EEOC interpretation that "adverse employment action" in the context of a Title VII retaliation claim means "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a charging party or others from engaging in protected activity." The court, however, concluded that its definition accomplishes the purpose to Title VII's anti-retaliation provision while also balancing "the need to prevent lawsuits based on trivialities." The court therefore re-affirmed the definition developed in Kocsis and similar 6th Circuit decisions.

In considering whether a suspension without pay followed by reinstatement with back pay is an adverse employment action, however, the 6th Circuit rejected an earlier decision suggesting that it would follow the Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) "ultimate employment decision" rationale.

[Nuclear and Environmental Whistleblower Digest XIII A]
[STAA Whistleblower Digest VI A]

ADVERSE EMPLOYMENT ACTION; TANGIBLE JOB DETRIMENT

In Hillig v. Rumsfeld, No. 02-1102 (10th Cir. Aug. 27, 2004), a Title VII case, the 10th Circuit held that any act that causes more than de minimis impact on a plaintiff's future employment opportunities may be actionable as retaliation. The court specifically disagreed with the district court's that an "adverse employment action," under Title VII, may be only those employment actions that result in "tangible harm" to the plaintiff. The court noted that there was split in the circuits on this issue.

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[Nuclear and Environmental Whistleblower Digest IX M 2]
ATTORNEY MISCONDUCT; JURISDICTION OF ARB TO REVIEW SECTION 18.34(g)(3) SUSPENSION ORDER; DE NOVO REVIEW OF PROCEDURE AND FACTUAL AND LEGAL CONCLUSIONS RELATING TO ISSUE OF WHETHER THERE HAD BEEN MISCONDUCT; ABUSE OF DISCRETION REVIEW OF CHOICE OF SANCTION

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ had suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). The attorney and his client appealed to the ARB, which found that it had jurisdiction to review the section 18.34(g)(3) suspension because it occurred in relation to whistleblower proceedings over which the Secretary had delegated the responsibility to review the recommended decisions of ALJs. Because the conduct occurred in different types of cases in which the type of review conducted by the ARB varied, the ARB concluded that it would use the most comprehensive level of review -- i.e., de novo review -- of the procedure that the Associate Chief ALJ had followed for compliance with due process guidelines, and his factual findings and legal conclusions regarding the instances of misconduct. The Board, however, applied an abuse of discretion standard to the Associate Chief ALJ's choice of sanction.

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; ROLE OF THE OFFICE OF THE SOLICITOR IS TO REPRESENT THE DEPARTMENT'S INTERESTS

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ had suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). On appeal, the Solicitor of Labor had filed an amicus brief on behalf of the Assistant Secretary for OSHA in support of the suspension. The attorney and his client filed a motion to disqualify the Solicitor as the Assistant Secretary's representative. The ARB denied the motion noting, inter alia, that "the Solicitor's representation of the Assistant Secretary in this appeal from [the Associate Chief ALJ's] disqualification of Mr. Slavin pursuant to Section 18.34(g)(3) accords with the Secretary's directive in Rex v. Ebasco Servs. that the Solicitor represent the Department's interests in attorney disqualification proceedings. Rex, No. 87-ERA-6, slip op. at 4 (Sec'y Oct. 3, 1994)."

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; 29 C.F.R. § 18.34(g)(3) PERMITS A BAR OF AN ATTORNEY FROM APPEARING IN FUTURE CASES

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ had suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). On appeal, the attorney and his client argued that § 18.34(g)(3) does not authorize entry of an order barring a representative from appearing in future cases. The ARB rejected this argument based on In re Edward A. Slavin, Jr., ARB No. 02-109, ALJ No. 2002-SWD-1 (ARB June 30, 2003) (distinction between 18.34(g)(3) and 18.36 proceedings) and Rex v. Ebasco Servs., 1987-ERA-6 and 40 (Sec'y Oct. 3, 1994) (Secretary's order agreeing to conduct a single proceeding to resolve question of attorneys' conduct rather than serial proceedings before each ALJ before which those attorneys appeared).

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; WHAT CONSTITUTES ADEQUATE DUE PROCESS UNDER SECTION 18.34(g)(3)

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ had suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). On appeal, the ARB considered whether this procedure complied with due process safeguards as interpreted within the context of attorney disciplinary proceedings.

The Board observed that section 18.34(g)(3) does not delineate a step-by-step process for rendering a determination. The Board carefully examined the Associate Chief ALJ's procedure and found that it comported with due process. Specifically, the ALJ's Notice of the Judicial Inquiry clearly identified the evidentiary basis for the section 18.34(g)(3) inquiry and the types of professional misconduct that were at issue. The Board found that the Notice also explained the procedure that would be followed and the means by which the attorney could defend against the charges, including the prerequisites for the scheduling of an evidentiary hearing. The ARB observed that because of the lack of detail in section 18.34(g)(3), it had been especially important to provide this information to the attorney. Finally the Board found that the Notice unambiguously advised the attorney of the consequences of a failure to timely respond, a failure to meet the prerequisites for an evidentiary hearing, and a failure to successfully defend against the charges.

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; ORAL, EVIDENTIARY HEARING NOT REQUIRED IF ATTORNEY FAILS TO PRESENT THE EXISTENCE OF A GENUINE ISSUE OF MATERIAL FACT; PRIOR JUDICIAL RULINGS ON MISCONDUCT AS EVIDENCE

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ had suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). In the Notice of Judicial Inquiry, the judge had informed the attorney of the charges, which were based on holdings of DOL ALJs, the ARB, and state and federal courts in prior proceedings. The judge explained the procedure that would be followed. The judge instructed, inter alia, that the attorney needed to present a genuine issue of material fact on the charges in order for an oral, evidentiary hearing to be convened, noting that in the prior cases the attorney had not denied that he had engaged in the conduct cited by the presiding officers but rather had typically defended based on First Amendment and justification defenses. The judge also informed the attorney that he would not be permitted to re-litigate any matter that he had been afforded a full and fair opportunity to contest in the case in which the misconduct occurred. When the attorney, in his response to the Notice, did not identify any evidence to present on any fact issues, the judge decided the case on the existing record without first convening an oral, evidentiary hearing.

On appeal the attorney and his client argued that the judge erred by failing to conduct an oral hearing. The Board, however, found that the Associate Chief ALJ's application of threshold requirements before such a hearing would be scheduled was "consistent with the procedural safeguards afforded an attorney who is the subject of a disciplinary proceeding. Cf. In re Keiler, 316 NLRB 763, 764-66 (1995) (discussing basic due process safeguards provided attorneys in disciplinary proceedings and by the agency's procedural rules, and concluding that attorney's response to the Board's show cause order failed to demonstrate a basis for an "oral or trial-type hearing"). The Board also found no error in informing the attorney that he would not be allowed to re-litigate matters in which he had been afforded an opportunity to challenge in the prior proceedings, noting that this was consistent with principles of issue preclusion, and that the Associate Chief ALJ had reviewed the "factual circumstances" evidenced by the court documents that were properly in the record. Moreover, the Board stated that "court or agency generated documents, including decisions and orders, that address an attorney's questionable conduct in a particular case may provide competent evidence in a later disciplinary proceeding regarding whether the attorney engaged in such conduct." (citations omitted).

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT BEFORE OALJ; PREPONDERANCE OF THE EVIDENCE STANDARD OF PROOF

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3), finding that documents from the official records of federal courts, state courts and DOL administrative proceedings provided "clear and convincing" evidence of misconduct. In an amicus brief on appeal, the Assistant Secretary for OSHA argued that the judge need not have applied a "clear and convincing" standard of proof, but should have used a preponderance of the evidence standard. The ARB agreed that the Secretary of Labor's decision in Rex v. Ebasco Servs. 1987-ERA-6 (Sec'y Oct. 3, 1994), provides for a preponderance of the evidence standard of proof in attorney misconduct cases before OALJ, but also agreed with the judge that the documentation provided such clear and convincing evidence, thus obviating any need to review the evidence under a lower standard.

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; USE OF ABA MODEL RULES OF PROFESSIONAL CONDUCT TO DETERMINE WHETHER THERE WAS MISCONDUCT AND THE ABA STANDARDS FOR LAWYER DISCIPLINE AND DISABILITY PROCEEDINGS TO DETERMINE THE SANCTION

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). The ARB found that the judge properly used the Model Rules of Professional Conduct in considering whether the attorney's conduct was improper. In addition, the Board found that the judge did not abuse his discretion in relying on the ABA Standards for Lawyer Discipline and Disability Proceedings (1992) to determine the time period for which the Section 18.34(g)(3) bar should be imposed.

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; FIRST AMENDMENT CONSTRAINED WHEN FILING DOCUMENTS OR OTHERWISE COMMUNICATING WITH A COURT

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). The attorney's chief defense was that his conduct was protected under the First Amendment. On review, the ARB agreed with the judge that much of the conduct for which the attorney was being suspended, like failing to file pleadings in a timely manner, with proper information and in the required format, could not reasonably be construed as speech protected by the First Amendment. The ARB also found that the judge properly concluded that the attorney's speech-based misconduct was subject to the constraints imposed on the language used by attorneys when filing documents with or otherwise communicating with a court, and thereby properly rejected the attorney's contention that the Section 18.34(g)(3) proceeding had been undertaken as retaliation for the attorney's exercise of his First Amendment rights through public criticism of the DOL whistleblower program. The ARB's decision includes several pages of discussion of the balance between protecting the integrity of the adjudicative process and the First Amendment.

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; FIVE YEAR DISQUALIFICATION APPROPRIATE WHERE THE ATTORNEY ENGAGED IN CONDUCT THAT BREACHED DUTIES TO HIS CLIENTS AND THE LEGAL SYSTEM AND WHERE THERE WERE NO MITIGATING CIRCUMSTANCES BUT A NUMBER OF AGGRAVATING FACTORS

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3) for an indefinite period of no less than five years. The ARB, employing an abuse of discretion standard of review in regard to the choice of sanction, found that the judge properly relied on the ABA Standards for Lawyer Discipline and Disability Proceedings (1992) to determine the time period for the sanction, that the judge carefully followed the comprehensive formula that the ABA standards provide, thoroughly explained his conclusions that the attorney had breached duties to his clients and to the legal system, and had explained his findings that there were no factors that weigh against imposing a severe sanction and that there were a number of aggravating factors that provide further support for the sanction. The Board therefore affirmed the five year disqualification.