Taylor v. Express One International, Inc., 2001-AIR-2 (ALJ Dec. 6, 2001)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue date: 06Dec2001

CASE NO.: 2001-AIR-2

IN THE MATTER OF:

GLYN TAYLOR, JR.
    Complainant

    v.

EXPRESS ONE INTERNATIONAL, INC.
    Respondent

   On December 5, 2001, Ms. Sheryl Vieyra, Trial Attorney for the Secretary of the U.S. Department of Labor, Office of the Solicitor filed a Motion to Quash Subpoenas of Anthony Incristi and Jerry Kearns, employees of the U.S. Department of Labor's Occupational Safety and Health Administration (herein OSHA).

   On December 5, 2001, Respondent filed, via facsimile, a Response to the Secretary's Motion to Quash Subpoenas and Supplemental Objections and Response to Complainant's "Motion."

   Complainant did not file a response.

   On November 30, 2001, Counsel for the Secretary of Labor, "who is not a party to this matter," received a copy of the subpoenas for Mr. Incristi and Mr. Kearns issued by Chief Administrative Law Judge John M. Vittone of the U.S. Department of Labor's Office of Administrative Law Judges. In cases arising under Section 519 of the Wendell H. Ford Aviation and Investment Reform Act for the 21st Century, Public Law 106-181, Subsection 42121(b)(2)(A) (herein AIR21), which is the employee protection provision of AIR21, the Secretary argues there is no congressional language granting subpoena authority to the Department of Labor (herein DOL).

   The Secretary further argues that the "anomalous dictum" of Childers v. Carolina Power & Light Co., ARB No. 98-077 (Case No. 1997-ERA-32) (Dec. 29, 2000), which supports subpoena authority by federal agencies, must be rejected as it fails to offer a well-reasoned basis for exercising subpoena powers absent an express grant of subpoena authority by Congress. The Secretary contends the Childers dictum provides three arguments in support of its holding all of which must fail.

   First, the Secretary notes Congress provided for subpoena authority in some of the statutes enforced by the DOL, but not in all. For example, the Secretary points out, administrative law judges have express subpoena authority when enforcing Fair Labor Standards Act, but not the Surface Transportation Assistance Act or AIR21. The Secretary contends the fact that Congress makes explicit grants of subpoena authority in some statutes and not in others provides strong evidence of its intent.

   Second, the Secretary observes that in Childers, the Administrative Review Board (herein ARB) reasoned whenever Congress delegates to an agency the authority to conduct hearings "on the record," that delegation necessarily includes inherent subpoena authority. The Secretary notes there is no support in the case law or statutes for this holding and citing Johnson v. United States, 628 F.2d 187, 192 (D.C. Cir. 1980), argues federal courts have held that subpoena authority may not be inferred or implied from agency authority to conduct hearings. Therefore, the Secretary contends, if an administrative agency may not manufacture its own subpoena powers, it follows that an administrative law judge employed by that agency is similarly constrained.

   Finally, the Secretary asserts the Administrative Procedures Act (herein APA) and the Rules of Practice and Procedure at 29 C.F.R. Part 18 allow agencies to issue subpoenas only where authorized by law. For example, administrative law judges may compel production of documents and appearance of witnesses in control of the parties. Therefore, the Secretary concludes, the most reasonable interpretation of the existing case law and statutory law is that an administrative law judge may only issue subpoenas when conducting hearings under those statutes where Congress has delegated such authority.

   Respondent counters that the question of whether administrative law judges have the authority to issue subpoenas under AIR21 has already been directly decided by ALJ Stansell-Gamm in Peck v. Island Express, Case No. 2001-AIR-3 (Aug. 20, 2001), and Respondent proffers the reasoning of ALJ Stansell-Gamm in support of his argument for denial of the Secretary's Motion to Quash Subpoenas. Respondent argues it should be afforded the opportunity to cross-examine Mr. Incristi and Mr. Kearns to fully examine the timeliness issue at the December 10, 2001 hearing in this matter.

   Under the Rules of Practice and Procedure before the Office of Administrative Law Judges, the Chief Administrative Law Judge may issue a subpoena, as appropriate, and as authorized by statute or law, upon the written application of a party requiring the attendance of a witness. 29 C.F.R. §18.24(a).

   The ARB has recently held that cases arising under the Energy Reorganization Act implicitly provided administrative law judges with subpoena power. The Board further noted the District of Columbia Circuit, in Johnson, supra, stated unless an agency, such as the Office of Administrative Law Judges, is required to issue adjudicative orders on the record after notice, it cannot employ evidence-gathering mechanisms like subpoenas that are traditionally part of formal trial-type proceedings. See Childers, supra @ 9.

   The Secretary notes that the APA permits agencies to issue subpoenas "as authorized by law." 5 U.S.C. §§ 555(d) and 556 (c)(2). However, the ARB in Childers explained that "authorized by law" does not amount to "express authorization" by Congress as long as the subpoena relates to the statute's underlying purpose, is reasonably specific and not unreasonably burdensome. Childers, supra @ 13-14.

   The pivotal issue raised by the Secretary's Motion is whether the Chief Administrative Law Judge had the authority to issue subpoenas to OSHA employees Anthony Incristi and Jerry Kearns on behalf of Respondent. AIR21 does not expressly provide an administrative law judge with such subpoena power. Based on the reasoning expressed by the ARB in Childers, the subpoenas will stand only if authority to issue subpoenas commanding testimony and/or documentary evidence exists for administrative hearings conducted pursuant to AIR21.

   As noted, this issue was addressed by Administrative Law Judge Stansell-Gamm in Peck v. Island Express. Although his Order denying the Secretary's Motion to Quash Subpoenas is not of precedential value, it is persuasive and well-reasoned. I agree with ALJ Stansell-Gamm that despite the Solicitor's challenge of the ARB's Childers reasoning, my ultimate recommended decision and order in this matter will be reviewed by the ARB and not the Solicitor, therefore I will follow the ARB's conclusion in Childers regarding the existence of authority to issue subpoenas in administrative whistleblower hearings.

   In the instant matter, the testimony of Mr. Incristi and Mr. Kearns is important in this proceeding to determine the threshold issue of the timely filing of Complainant's complaint under AIR21. I find that the administrative subpoena of Mr. Incristi and Mr. Kearns is appropriate in this matter.

   It has been represented that Mr. Incristi will present evidence of the timely written filing of Complainant's AIR21 complaint of discrimination and that Mr. Kearns has knowledge of Complainant's telephonic contact with OSHA about filing his complaint under AIR21.

   Moreover, Mr. Incristi and Mr. Kearns are employees of OSHA which agency has been delegated the authority to investigate discrimination complaints under AIR21. Although Mr. Incristi is employed in the Atlanta, Georgia office of OSHA and Mr. Kearns is located in the OSHA area office in Austin, Texas, Respondent is responsible to provide pre-paid fees and travel reimbursement to witnesses subpoenaed. I find their attendance at the formal hearing in Dallas, Texas, is not unduly burdensome in view of the importance of their testimony

and the possible repercussive affect of the absence thereof. However, the testimony of Mr. Incristi and Mr. Kearns will be limited to the specific issue of the circumstances involving the timely filing of Complainant's complaint under AIR21. Therefore, the Secretary's Motion to Quash the subpoenas issued to Anthony Incristi and Jerry Kearn is hereby DENIED.

   Based on the foregoing, I conclude that the Secretary's Motion to Quash the subpoenas issued to Anthony Incristi and Jerry Kearn is hereby DENIED.

   IT IS FURTHER ORDERED that Anthony Incristi and Jerry Kearn must comply with the administrative subpoena and appear at the December 10, 2001 hearing in this matter scheduled to convene at 9:00 a.m. at the U.S. Tax Court Courtroom, Federal Building, Room 591, 207 South Houston Street, Dallas, Texas.

   ORDERED this 6th day of December 2001 at Metairie, Louisiana

       LEE J. ROMERO, JR.
       Administrative Law Judge