According to its regulations, the FAA does not permit its employees to testify in proceedings involving private litigants unless the request for testimony or documents is submitted in accordance with 49 C.F.R. Part 9. Under this provision, the request for testimony and documents is sent to the FAA General Counsel who determines whether the FAA will produce the requested documents and permit the requested individual to testify. Since Mr. Peck's subpoena does not comply with those regulatory provisions, the FAA seeks to quash the subpoena of Ms. Ferrara, who is an FAA aviation safety inspector in Fort Lauderdale, Florida. Mr. Peck had been informed of the proper procedures but did not comply.

   Mr. Peck requests that the Motion to Quash the subpoena be denied. He asserts that Ms. Ferrara's testimony is directly related to her investigation of Island Express and his relationship with the FAA and Island Express. Without Ms. Ferrara, Mr. Peck will be at a "great disadvantage" because her testimony is the only way he can challenge Island Express' responses to the OSHA investigation. Mr. Peck stresses that the whistle blower provision of AIR 21 provide little protection if an employee is unable to obtain facts that may be in the possession of the FAA.

   When Congress directs DOL to conduct a formal adversarial adjudication to be determined on the record after the parties have an opportunity for an administrative hearing in accordance with the Administrative Procedures Act ("APA"), the procedural rules for the Office of Administrative Law Judges are applicable to such hearing. See 5 U.S.C. 554, 556, and 557, and 29 C.F.R. § 18.1101 (a) (1). Within those procedural rules, 29 C.F.R. §18.24 governs the issuance of administrative subpoenas. According to this regulation, the Chief Administrative Law Judge, or the presiding 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 essential inquiry in considering this motion is whether the Chief Administrative Law Judge had the authority, either by statute or law, to issue the subpoena to Ms. Ferrara on Mr. Peck's behalf. Since AIR 21 did not expressly give administrative law judges such subpoena power, the subpoena will stand only if by operation of law, authority for an administrative subpoena exists for hearings conducted under AIR 21.

   After the ARB's decision in Childers, the issue of administrative subpoenas in whistle blower cases seem to be resolved. However, in July 2001, the Solicitor for DOL found the ARB's reasoning "erroneous" and its dictum "legally indefensible." According to the Solicitor's directive, the agency should resist complying with subpoenas not specifically authorized by statute in whistle blower cases.

   This collision between the Secretary's delegated decision authority and her chief counsel on whistle blower cases certainly seems to muddy the water. However, because my recommended decision and order is reviewed by the ARB and not the Solicitor, I consider the ARB's conclusion that administrative subpoena power is applicable in whistle blower cases to be my guiding principle. And, since I concur with the ARB's legal analysis (even though considered "indefensible" in some quarters), I have no inclination to reach a decision in the Motion to Quash Subpoena before me that is contrary to either the letter or spirit of the ARB's decision in Childers.

   Having determined that authority for subpoena power does exist in this case, I next turn to the specifics of Mr. Peck's subpoena of Ms. Ferrara to evaluate whether issuance of the subpoena was warranted. For two reasons set out below, I find Ms. Ferrara's testimony is critical to the adjudication of Mr. Peck's complaint and that her participation furthers the purpose of the whistle blower provisions in AIR 21.

   First, Ms. Ferrara's testimony is important in this proceeding due to the analytical structure of deciding the validity of a whistle blower case. In the absence of direct evidence, or an admission, of a discriminatory or punitive purpose to the adverse action, a whistle blower complainant may establish that a protected activity (see Section 42121 (a) (1) to (4)) likely motivated the adverse employment action, such as a discharge, by showing (1) that he engaged in protected activity, (2) that the respondent was aware of the activity, (3) that he suffered adverse employment action, and (4) the existence of a "causal link" or nexus," e.g., that the adverse action followed the protected activity so closely in time as to justify an inference of retaliatory motive. Byrd v. Consolidated Motor Freight, 97-STA-9 @ 4-5 (ARB May 5, 1998) and Kahn v. United States Sec'y of Labor, 64 F. 3d 261, 277 (7th Cir. 1995). Ms. Ferrara, as Mr. Peck's contact at the FAA, has knowledge about the circumstances of the FAA audit and the extent of communication between the FAA and Island Express concerning the basis for the audit. Her testimony goes directly to the issue of whether Island Express was aware of Mr. Peck's protected activity under AIR 21. Clearly, the participation of an FAA employee in this situation is necessary.

   Second, Ms. Ferrara will be able to present the results of the FAA so that I may consider whether Mr. Peck's discrimination complaint was frivolous or brought in bad faith

   Besides possessing relevant information in this case, Ms. Ferrara is a federal employee with the FAA assigned in the Fort Lauderdale community. Her attendance at a hearing conducted in that city does not appear to be unduly burdensome nor expensive. In addition, the focus of Mr. Peck's subpoena is sufficiently specific in that it requires her testimony, and the production of documents, concerning the circumstances of the FAA's audit of Island Express.

   The subpoena furthers the purpose of the whistle blower provisions of AIR 21 in that Ms. Ferrara's testimony, and associated documents, relate to essential elements of Mr. Peck's employment discrimination complaint. The subpoena is reasonably specific and not unreasonably burdensome. Accordingly, I find the administrative subpoena of Ms. Jean Ferrara of the FAA is appropriate and the Motion to Quash Subpoena must be denied.

   The FAA's resistance to the subpoena is disturbing. The purpose of AIR 21, which Congress placed within legislation directly affecting the FAA, was clearly to encourage individuals to report perceived aviation safety hazards to the FAA. By providing an employment protection umbrella, Congress sought to assure aviation safety whistle blowers that their employment would not be jeopardized by bringing non-frivolous complaints of aviation safety deficiencies to the attention of the FAA. Imagine the subsequent surprise of these individuals when they attempt to open this protection and discover it is full of holes because the FAA refuses to provide witnesses, and documents, essential to the whistle blowers' efforts to prove their employment discrimination complaints.

1. The Motion to Quash Subpoena Directed to Ms. Jean Ferrara is DENIED.

2. I ORDER Ms. Jean Ferrara to comply with the subpoena and appear at the hearing before me, with the requested documents, at the following date, time and location: