|November 3, 2008|
Information for Whistleblowers
The Secretary of Labor has delegated her responsibility to issue final agency decisions in cases involving the whistleblower provisions of some environmental and other statutes to the Administrative Review Board. The ARB automatically reviews all recommended decisions by Administrative Law Judges (ALJ) under the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A. § 31105 (West 1997). A party seeking review of an ALJ's decision under other whistleblower provisions must file a timely petition for review with the Board as provided in the relevant statute's implementing regulations.
Regulations implementing the STAA provide that a party may file a brief in support of or in opposition to an ALJ's recommended decision within thirty days of the date the ALJ issues the decision. But in cases arising under the other whistleblower provisions, once a party has sought timely review and the ARB dockets an appeal, it issues an order setting out the briefing schedule and procedural requirements for briefs. The ARB may affirm, reverse or modify the ALJ's decision, or it may remand the case for further proceedings before the ALJ. The ARB's final decision ends all proceedings before the Secretary of Labor. Thus, after the ARB issues its final decision any further proceedings are in the federal courts.
"Whistleblower" is a term of art used to refer to the broader category of "employee protection" provisions of various laws. The Department of Labor adjudicates many, but not all, whistleblower disputes.
Whistleblower, or employee protection, complaints in cases adjudicated by the Department of Labor are initially filed with OSHA, ESA or OWCP, depending on the law involved.
The following discussion describes what can you expect after the investigating agency has completed its investigation and rendered a determination, and either you or the Respondent has requested a hearing.
Setting up the hearing
Most whistleblower cases are expedited. Thus, an administrative law judge is assigned to the case within a few days after docketing. ALJ hearings are generally set for the most practical place for a hearing, such as a town nearest to where most witnesses would be located. You will not have to travel to Washington, D.C. for the hearing unless that is the logical place for the hearing.
Discovery, motions, settlement negotiations
A whistleblower case proceeds much like any law suit - there is a pre-hearing period in which the parties conduct discovery, file motions with the ALJ, and work out the hearing schedule. Parties may engage in settlement negotiations. OALJ will provide a settlement judge to assist in any settlement negotiation if the parties jointly request. See Settlement Judges.
At the hearing, witnesses will testify and evidence is submitted. This is the record upon which the case is decided, so it is important to put on all of your relevant evidence at this time, including evidence on damages (unless the ALJ has ordered a second hearing dedicated solely to this issue).
ALJ hearings are de novo, which means "from the beginning." Thus, the ALJ will independently consider the testimony and evidence to determine whether a whistleblower law has been violated, and if so, what relief is appropriate.
ALJ hearings are open to the public. ALJ and ARB decisions and selected orders are published on the DOL Web site. Thus, if you intend to introduce evidence or testimony that you do not wish to have open to public scrutiny, you must take steps before the ALJ to invoke whatever legal protections may be available to limit public access. An ALJ, however, is limited in his or her authority to restrict such access. See Public Access Notice.
Contacting the OALJ or the presiding ALJ
Improper ex parte communication with an administrative adjudicatory officer is prohibited by statute and regulation. If you make such a communication, including messages sent by e-mail, the agency is required to put that communication on the public record. See 5 U.S.C. 557(d)(1)(C); 29 C.F.R. § 18.38.
Some ex parte communications are not improper. Communications, for example, for the sole purpose of scheduling hearings or requesting extensions of time are not considered ex-parte communications, except that all other parties should be notified of such request by the requesting party and be given an opportunity to respond thereto. No person at OALJ may give you advice on how to litigate your case.
The ALJ's decision
Once the record is closed, the ALJ will write a decision. Depending on the law involved, some decisions are automatically reviewed by the Administrative Review Board, and some are only reviewed if one of the parties requests such review. Some decisions are only reviewed by the ARB if a party petitions for review and the ARB decides to accept the case for review. The ALJ's decision will have a notice explaining the appeal process for the particular law involved.
How long does it take?
The length of the hearing process varies depending on how complex the case is. Thus, a case may be resolved within weeks of assignment to an ALJ, while some particularly complex cases may be pending for a year or more. A typical case takes about six months between assignment of an ALJ and the issuance of the ALJ's recommended or initial decision.
Attorneys and representatives
Most whistleblowers are represented by an attorney, and because the law in this area can be complex, you may be well-advised to retain a private attorney. You may, however, use a lay representative or choose to appear on your own behalf ("pro se"). In STAA cases where the OSHA Regional Administrator found that the complaint had merit, the prosecuting party is the Assistant Secretary for OSHA, who is represented by the Office of the Solicitor. Thus, a DOL attorney may be taking a role that favors your position in a whistleblower hearing. Technically, however, the DOL attorney is representing OSHA rather than you. Thus, many STAA whistleblowers still retain a private attorney to assist in the prosecution of the case.
OALJ does not appoint counsel nor can it make attorney referrals. 29 C.F.R. §18.35.
Once the ARB dockets an appeal, it issues a Notice setting out the briefing schedule and procedural requirements for briefs. The ARB may affirm, reverse or modify the ALJ's decision, or it may remand the case for further proceeding before the ALJ. The ARB's final decision ends all proceedings before the Secretary of Labor. Thus, after the ARB issues its final decision any further proceedings are in the federal courts.