Office of Administrative Law Judges
United States Department of Labor
August 1, 1996
This newsletter covers the materials that became available during
the period from July 4, 1996 to July 29, 1996.
ADVERSE ACTION; AGENCY'S COMMUNICATION WITH OWCP UPON
DISCOVERY THAT COMPLAINANT WAS IMPROPERLY RECEIVING DISABILITY
BENEFITS UNDER FECA
[N/E Digest XIII B 2]
During an ERA whistleblower hearing, Complainant voluntarily
disclosed that while collecting both total and partial disability
FECA payments from TVA, he had returned to work but had not
returned the disability checks. TVA had earlier become aware of
that Complainant was improperly receiving both total and partial
disability through a routine review by TVA of OWCP charges for
benefits paid. After the matter was brought to the attention of
OWCP, both of Complainant's disability payments were terminated.
Complainant then filed an ERA whistleblower complaint asserting
that TVA discriminatorily persuaded OWCP to terminate his FECA
benefits.
TVA's communication with OWCP in an attempt to have
Complainant's eligibility for FECA benefits reviewed was found
not to violate the ERA because TVA's actions were specifically
authorized by FECA regulations. See 20 C.F.R. §
10.140. The Board concluded that Complainant was
"attempting to improperly circumvent the preclusive and
binding effects of his adverse OWCP and ECAB rulings under the
FECA through this separate and unauthorized action in a matter
exclusively within the purview of the FECA. 5 U.S.C.
§§ 8116(c) and 8128(b) (1988)." Slip op. at 13
(footnote and case citations omitted).
AFTER ACQUIRED EVIDENCE; APPROPRIATE SANCTIONS ON RESPONDENT
WHO UNDERTAKES INVESTIGATION OF COMPLAINANT
[N/E Digest XI F]
In James v. Ketchikan
Pulp Co., 94-WPC-4 (ARB June 28, 1996), Complainant
moved for reconsideration and rehearing based on evidence
obtained after the close of the record, which he contended showed
that Respondent's witnesses lied concerning Respondent's
knowledge of his protected activities, and its investigation of
Complainant. The Board found that the new evidence concerned an
issue on which Complainant had prevailed before the Secretary,
who explicitly found that Complainant was singled out for
suspension because of his protected activities.
The Board held:
Implicit in this finding is the recognition that James
discriminatorily was targeted for investigation by KPC.
Notwithstanding KPC's impermissible motive in investigating
James, however, the company uncovered evidence that
justified firing him. As the Supreme Court recognized in
McKennon v. Nashville Banner Publishing Co., 115
S.Ct. 879, 1995 U.S. LEXIS 699 at *19: "Once an
employer learns about employee wrongdoing that would lead to
a legitimate discharge, we cannot require the employer to
ignore the information, even if it is acquired during the
course of discovery in a suit against the employer and even
if the information might have gone undiscovered absent the
suit."
Here, the Secretary followed the Supreme Court's
guidance and did not require KPC to ignore the evidence it
uncovered, even though KPC's motive for conducting the
investigation was wrongful. The Supreme Court recognized in
McKennon that an award of attorney's fees and, in
appropriate cases, an additional sanction may be employed to
diminish the willingness of employers to "undertake
extensive discovery into an employee's background or
performance to resist claims." Id. at *20. In this
case, we believe that the Secretary's decision awarding
attorney's fees and costs to James is a sufficient
deterrent.
ATTORNEY'S FEES; LODESTAR METHOD; FEE ITEMIZATION
[N/E Digest XVI E 3 a]
The lodestar method is employed in calculating attorney's
fees under the environmental whistleblower statutes. This method
requires multiplying the number of hours reasonably expended in
pursuing the litigation by a reasonable hourly rate. Hensley
v. Eckerhart, 461 U.S. 424 (1983).
A petition for attorney's fees must be based on records,
indicating date, time and duration necessary to accomplish the
specific activity. Each activity item should be detailed and
clearly identifiable as pertaining to the case. All claimed
costs should be specifically identified, and if possible, a
receipt appended.
In Sutherland v. Spray
Systems Environmental, 95-CAA-1 (ARB July 9, 1996),
counsel's fee itemization provided the date and time spent for
each element of activity associated with the appeal before the
Secretary. The Board stated that it is not required that counsel
share his work product with Respondent, and such elements were
self-explanatory. The Board also stated that the actual time of
day that the activity took place was inconsequential, and that
counsel had provided all necessary information.
ATTORNEY'S FEES; REASONABLY INCURRED STANDARD; LATE BRIEF;
ABSENCE OF OBJECTION
[N/E Digest XVI E 2]
The ERA requires a respondent to pay only those costs,
including attorney's fees, reasonably incurred in bringing a
complaint. 42 U.S.C. § 5851(b)(2)(B). Where Complainant's
attorney prepared and filed a brief on review by the Secretary
several months late, without seeking leave or providing any
reason for the delay, a fee request for preparation of the brief
was not reasonable, and was properly deducted by the ALJ from his
recommendation on attorney's fees. The Board did not find
persuasive Complainant's argument that Respondent waived any
objection to hours claimed for preparing the brief when it did
not oppose the earlier fee request.
ATTORNEY'S FEES; WORK BEFORE COURT OF APPEALS; SPILT IN
CIRCUITS
[N/E Digest XVI E 4 c]
In cases arising in the Sixth Circuit, the Secretary and the
Board are not authorized to award attorney's fees for appellate
work before the court of appeals. DeFord v. Tennessee Valley
Authority, 715 F.2d 231, 232-33 (6th Cir. 1983). In Fourth
Circuit cases, however, the Secretary and Board are permitted to
order the respondent to pay attorney fees for appellate work in
the court of appeals. Blackburn v. Reich, 79 F.3d 1375
(4th Cir. 1996).
DELIBERATIVE VIOLATION AS BAR TO SUIT UNDER CAA
[N/E Digest XIX]
In Dotson v. Anderson
Heating & Cooling, Inc., 95-CAA-11 (ARB
July 17, 1996), the Board adopted the ALJ's findings that
Complainant was not protected by the Clean Air Act because he
deliberately violated the Act by cheating on an EPA required
examination, and that Respondent did not direct him to do so. 42
U.S.C. § 7622(g).
DISMISSAL FOR FAILURE TO RESPOND TO LAWFUL ORDER OF ALJ
[N/E Digest XVIII C 6]
In Billings v.
Tennessee Valley Authority, 91-ERA-12 (ARB June
26, 1996), the ALJ issued an order to show cause why the case
should not be dismissed due to the failure of Complainant to
comply with an earlier prehearing order. Complainant's response
avoided the issue, and did not contain a denial that he failed to
comply with the ALJ's prehearing order. The Board held that the
ALJ's dismissal of the complaint with prejudice was proper
pursuant to 29 C.F.R. § 24.5(e)(4)(I)(B).
INTERNAL COMPLAINTS; INFORMALITY OF COMPLAINT
[N/E Digest XII B 1 d i and XII C 1]
In Hermanson v.
Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996),
the Board found that the ALJ correctly recognized that internal
complaints were protected under the whistleblower provisions of
the pertinent environmental statutes. The Board, however, stated
that it was reluctant to accept the ALJ's decision insofar as the
ALJ at points suggested that he was reluctant to find
Complainant's alleged complaints to be protected activity because
they were both internal and informal.
The Board observed that an informal and internal safety
complaint may constitute protected activity. Slip op. at 5,
citing, Nichols v. Bechtel Construction, Inc., 87-ERA-44,
slip op. at 10 (Sec'y Oct. 26, 1992) (employee's verbal
questioning of foreman about safety procedures constituted
protected activity), appeal dismissed, No. 92-5176 (11th
Cir. Dec. 18, 1992); Dysert v. Westinghouse Electric
Corp., 86-ERA-39, slip op. at 1, 3 (Sec'y Oct. 30, 1991)
(employee's complaints to team leader protected).
The Board emphasized that "[i]nternal safety complaints
are covered under the environmental whistleblower statutes in the
Eighth Circuit, the Fifth Circuit and every other circuit. See
Amendments to the ERA in the Comprehensive National Energy Policy
Act of 1992 (CNEPA), Pub. L. No. 102-486, 106 Stat. 2776."
The Board noted that "[t]he only current exception to this
rule is for cases filed in the Fifth Circuit under the Energy
Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. §
5851 (1988), prior to October 24, 1992."
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE ACTION;
EVIDENCE OF DISCIPLINE OF OTHERS FOR SAME ACTIVITY IN PAST
[N/E Digest XI E 3]
In Hermanson v.
Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996),
the Board indicated that evidence that Respondent had fired other
employees in the past for the same failure to adhere to conduct
and safety rules that Complainant was fired for, supported a
finding that Respondent's decision to fire Complainant was for
nondiscriminatory reasons.
PRELIMINARY ENFORCEMENT ORDERS UNDER ERA; POST-REINSTATEMENT
PERFORMANCE EVALUATIONS AND REFERENCES
[N/E Digest XVI B 3 and XVI G 2 a]
In McNeice v. Northeast
Nuclear Energy Co., 95-ERA-18 and 47 (ARB July 3,
1996), the Board clarified the Secretary's earlier Preliminary
Order and Order of Remand, which directed Respondent to correct a
1994 performance evaluation relating to Complainant. The Board
stated that the directive only affected that performance
evaluation, and not any performance evaluations subsequent to
Complainant's reinstatement in 1996. The Board noted, however,
that post reinstatement evaluations must not reflect anything
other than a fair and accurate evaluation of the Complainant's
performance.
In addition, the Board noted that the preliminary order
directing Respondent not to give a less than satisfactory
reference regarding Complainant, only related to the period up to
Complainant's 1996 reinstatement. The Board stated that if
Complainant ceases to be employed by Respondent in the future,
Respondent is expected to provide a fair and accurate reference
of Complainant's performance subsequent to the 1996
reinstatement.
PRELIMINARY ENFORCEMENT ORDERS UNDER ERA; TYPES OF RELIEF
ENFORCED
[N/E Digest XVI B 3 and XVI G 2 b]
In McCafferty v.
Centerior Energy, 96-ERA-6 (ARB July 15, 1996), the
ALJ issued a recommended decision and order in favor of
Complainants. The Board issued a Preliminary Order directing
Respondent to comply with various forms of relief recommended by
the ALJ: reinstatement of Complainants in accordance with
certain directives by the ALJ; payment of back pay with interest;
removal of denial of access flags from the records of all
Complainants. The Board indicated that it would supplement the
Preliminary Order once the ALJ issued his recommended
supplemental decision and order concerning costs and expenses,
including attorney's fees.
The ALJ had ordered reinstatement of one Complainant -- who
had been denied access to at least one of Respondent's facilities
because of falsification of a self-disclosure questionnaire -- be
conditioned on compliance with NRC regulations. The ALJ held
that if NRC regulations mandated a professional assessment before
reinstatement, that Complainant should be given the opportunity
to pursue the assessment. McCafferty v. Centerior
Energy, 96-ERA-6 (ALJ June 11, 1996).
PROTECTED ACTIVITY; GENERAL SAFETY COMPLAINTS
[N/E Digest XII D 1 a]
In Hermanson v.
Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996),
the Board held that the ALJ had drawn too broad a conclusion by
stating that "the whistleblower provisions of the various
environmental statutes are intended to apply to the expression of
environmental concerns rather than general safety concerns."
Rather, the Board stated that "[u]nder the appropriate
conditions a general safety concern stated by an employee can
have an environmental impact such that it would be covered."
Slip op. at 5 (citations omitted).
PROTECTED ACTIVITY; COMPLAINANT NEED NOT BE A SUBSTANTIAL
SOURCE OF INFORMATION
[N/E Digest XII C 5]
In Hermanson v.
Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996),
Complainant and other employees were emptying an aqueous waste
tank when a drum of waste material fell and a portion of its
contents were spilled. A shift engineer who investigated the
incident talked to employees involved, including Complainant.
Complainant testified:
. . . It was getting close toward the end of the day and
Mr. Winchester came up to me and he said, "Dave, what
are you talking about?" I said, "What do you
mean? What are you talking about?" He said,
"That spill." I Said, "You mean the one
Friday?" And he says, "Was it a bucket, a gallon,
or how much was it? How big of a spill was it?" I
said, "Mr. Winchester, I can't tell you. There's a gag
order and I can't speak to you. I'll have to refer you to
my supervisors and management because my job is on the
line." And he understood.
Slip op. at 3, quoting transcript of hearing. The ALJ held
that Complainant was not a party to the investigation of the
incident and therefore could not have engaged in protected
activity. The Board, although agreeing that Complainant
"did not provide substantial information concerning the
incident, [concluded that] his statement to Winchester confirming
that a spill had occurred was a clear indication that further
investigation of the incident was necessary, and thus was
protected.
RECUSAL; JUDGE WHO HAD PRESIDED OVER RELATED OR PRIOR
PROCEEDINGS
[N/E Digest VIII A 5]
In Billings v.
Tennessee Valley Authority, 91-ERA-12 (ARB June 26,
1996), Complainant sought recusal by the presiding ALJ, who had
presided over earlier, related cases involving Complainant. The
Board affirmed the ALJ's ruling denying recusal. See 29
C.F.R. § 18.31; 28 U.S.C. §§ 144, 455(a),
455(b)(1). An excerpt from the Board's discussion follows:
Under 28 U.S.C. § 144, a judge is presumed to be
impartial, and a substantial burden is imposed on the
requesting party to prove otherwise. . . .
Absent specific allegations of personal bias or
prejudice, neither prior adverse rulings of a judge nor his
participation in a related or prior proceeding are
sufficient for recusal under 28 U.S.C. § 144. ...
Adverse rulings in previous proceedings, whether correct or
erroneous, involving the same judge and the party requesting
recusal, are an insufficient basis for recusal. ...
Similarly, under 28 U.S.C. § 455(a), opinions
held by judges as a result of what they learned in earlier
proceedings are not bias or prejudice requiring recusal, and
it is normal and proper for a judge to sit in the same case
upon remand and successive trials involving the same
defendant. The source of the appearance of partiality must
arise from something other than the judge's mere involvement
in previous cases concerning the parties in the present
case.
Slip op. at 5-7 (citations omitted).
REMAND; ALLEGATION OF INADEQUATE WAGE AND HOUR
INVESTIGATION
[N/E Digest V C]
In Billings v.
Tennessee Valley Authority, 91-ERA-12 (ARB June 26,
1996), Complainant sought remand of the matter to the Wage and
Hour Division for further investigation. The Board affirmed the
ALJ's ruling denying remand because Complainant did not establish
a legitimate reason for remand, but only attacked the merits of
Wage-Hour's findings of nondiscrimination. The Board added that
Wage-Hour's findings were not binding because the regulations
accord complainants a right to de novo hearings on the
merits of complaints. The Board wrote: "Accordingly, any
arguable flaws in Wage-Hour's investigation or findings would not
adversely affect litigation of his case before the ALJ."
Slip op. at 8-9 (citations and footnote omitted).
REOPENING OF RECORD; NEW EVIDENCE MUST BE
OUTCOME-DETERMINATIVE
[N/E Digest IX D 2]
In James v. Ketchikan
Pulp Co., 94-WPC-4 (ARB June 28, 1996), the Board
cited Timmons v. Mattingly Testing Services, 95-ERA-40
(ARB June 21, 1996), for the proposition that material evidence
justifying reopening must be outcome-determinative. See
also 29 C.F.R. § 18.54(c)(1995).
RES JUDICATA; PRIOR SUIT DISMISSED UNDER RULE 41(b) FOR
FAILURE TO COMPLY WITH ALJ'S PREHEARING ORDERS
[N/E Digest XXI A]
The law of res judicata is applicable to administrative
proceedings when an agency is acting in a judicial capacity.
Under the doctrine of res judicata, a judgment on the merits in a
prior suit bars a second suit involving the same parties based on
the same cause of action. The judgment precludes the parties
from relitigating issues that were or could have been raised in
that action.
In Billings v.
Tennessee Valley Authority, 91-ERA-12 (ARB June 26,
1996), the ALJ had issued prior decisions on complaints that
raised the same issues vis-a-vis the Respondents named in
the present proceeding. The Board held that even though the
substance of these issues was not specifically litigated in the
prior cases, the ALJ's recommended decision and order therein
constituted a judgment on the merits for res judicata
purposes. The ALJ's recommended decision and order was issued
pursuant to Fed. R. Civ. P. 41(b) for failure to comply with the
ALJ's prehearing orders, was subsequently affirmed by the
Secretary, and the courts of appeals denied review.
The Board held that a dismissal order issued under Rule 41(b)
operates as an adjudication on the merits unless the dismissal
order specifies otherwise, and therefore the instant action was
barred by the doctrine of res judicata. The Board noted
that it was irrelevant under Rule 41(b) that the ALJ's orders in
the earlier proceeding were issued sua sponte.
SETTLEMENT; DOLLAR AMOUNT MUST BE DISCLOSED TO DEPARTMENT;
AMOUNT OF ATTORNEY FEES AGREED TO NEED NOT BE REVIEWED UNLESS A
DISPUTE ARISES ABOUT THE APPROPRIATENESS OF THE AMOUNT
[N/E Digest XVII C 3]
The Board, ordering a joint response from the parties in the
cases, stated that it must know the amount Complainant will
receive in order to determine if the settlement agreement is
fair, adequate and reasonable. The Board stated in each order
that: "This amount affects not only the Complainant's
individual interest, but impacts on the public interest as well,
because if the amount is not fair, adequate and reasonable, other
employees may be discouraged from reporting safety
violations." Citing Plumlee v. Alyeska Pipeline Service
Co., 92-TSC-7 (Sec'y Aug. 6, 1993).
In Klock and Biddy, the record
also failed to specify the amount of attorney's fees to be paid.
The Board stated in those orders that "[a]s long as the
parties are in agreement as to the amount of the attorney's fees
to be paid, it is not necessary for the Secretary to review the
amount with the specificity usually required by the lodestar
method. Hensley v. Eckerhart, 461 U.S. 424 (1983). If a
dispute arises between the parties with regard to the
appropriateness of the amount of attorney's fees, a subsequent
order requiring an itemization of such fees may be
necessary."
SETTLEMENT MUST BE PRESENTED TO DEPARTMENT FOR APPROVAL
[N/E Digest XVII C 3]
[STAA Digest X A 3]
In Faust v. Chemical
Leaman Tank Lines, Inc., 92-SWD-2 and 93-STA-15 (ARB
June 13, 1996), the Secretary issued a remand order to the ALJ
for a recommended order on damages. Respondent filed a request
that the remand order be vacated because the parties had settled
a couple months prior to issuance of the remand order. This was
the first notice DOL had of the settlement. The Board declined
to vacate the remand order, noting that until the settlement was
approved it was not valid. The Board directed the ALJ to
consider the proposed settlement, "or if either party so
desires, for issuance of a recommended order on damages
consistent with the [remand order]".
SUBSTITUTION OF REPRESENTATIVE DURING COURSE OF
PROCEEDING
[N/E Digest IX M]
In Billings v.
Tennessee Valley Authority, 91-ERA-12 (ARB June 26,
1996), Complainant's wife filed a motion to be substituted as the
representative of her deceased husband. The Board granted this
motion pursuant to Fed. R. Civ. P. 25(a) and 29 C.F.R. §
18.1(a).