Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Issue date: 20Aug2001
CASE NO.: 2001 AIR 3
In the Matter of
WILLIAM H. PECK Complainant
v.
ISLAND EXPRESS
Respondent
APPEARANCES:
Mr. William Peck, Pro Se
Mr. Brian Kopelowiz, Attorney
For the Respondent
Ms. Krista M. Fox, Attorney
For the Federal Aviation Administration
BEFORE:
Richard T. Stansell-Gamm
Administrative Law Judge
ORDER - DENIAL OF MOTION TO QUASH SUBPOENA
On June 25, 2001, I received this case from the Chief Administrative Law Judge, Office of Administrative Law Judges ("OALJ"), U.S. Department of Labor ("DOL") to conduct a hearing under Section 519 of the Aviation Investment and Reform Act for the 21st Century, Public Law 106-181, Subsection 42121 (b) (2) (A) ("AIR 21"), based on the timely hearing request by Mr. Peck who objected to the findings of the investigation by the Occupational Health and Safety Administration into his discrimination complaint. The hearing is presently scheduled for September 20, 2001 in Fort Lauderdale, Florida.1
2Ms. Ferrara has not personally opposed the subpoena.
3On April 17, 1996, the Secretary issued Secretary Order 2-96 which established the ARB and delegated to the ARB, in part, the authority and responsibility to act for the Secretary in issuing final decisions on questions of law and fact and to review recommended decisions and orders in various environmental whistle blower cases.
4In a manner similar to Section 42121 of AIR 21, Section 5851 of the ERA, 42 U.S.C. § 5851, provides a remedy for employees in the nuclear power industry who suffer employment discrimination because they complain about unsafe conditions.
5Although concurring with the other two board members that the ERA implicitly empowered an administrative law judge with subpoena power, one member of the ARB, contrary to the majority opinion, believed a remand was necessary in order that the complainant be given an opportunity to demonstrate why his requested witness subpoena was necessary.
6Johnson v. United States, 628 F.2d 187, 193 (D.C. Cir. 1980), Deviny v. Campbell, 194 F.2d 876, 879-880 (D.C. Cir.), cert. denied 344 U.S. 826 (1952), and Atlantic Richfield Co. v. DOE, 769 F.2d 771, 795 (D.C. Cir. 1984).
7Immanuel v. United States Dep't Labor, 139 F.3d 889 (unpublished table decision) (4th Cir. 1998), 1998 WL 129932.
8Prior to the scheduled hearing, Mr. Peck may, but is not required to, avert the legal confrontation by applying, as indicated in Ms. Fox's Motion to Quash Subpoena and 49 C.F.R. Part 49, to the FAA General Counsel for permission to have Ms. Ferrara testify at the hearing and produce the requested documents.