U.S. Department of Labor Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 693-7500 www.oalj.dol.gov

John M. Vittone Chief Judge Thomas M. Burke Associate Chief Judge for Black Lung and Traditional

NOTICE: This newsletter was created solely to assist the staff of the Office of Administrative Law Judges in keeping up to date on whistleblower law. This newsletter in no way constitutes the official opinion of the Office of Administrative Law Judges or the Department of Labor on any subject. The newsletter should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. It is intended simply as a research tool, and is not intended as final legal authority and should not be cited or relied upon as such.

PROCEDURE

WHEN ALJ'S DECISION BECOMES APPEALABLE; DECISION ON ATTORNEY'S FEES RESERVED

In Merritt v. Allegheny Airlines, Inc., 2004-AIR-13 (ALJ Feb. 14, 2005), the ALJ had issued a Decision and Order Granting Relief and attached a notice of appeal rights. The ALJ, however, had not yet determined the amount of attorney fees to be awarded. The ALJ granted the Respondent's motion for clarification of the notice of rights of appeal. The ALJ found that, in light of Welch v. Cardinal Bankshares Corp., ARB No. 04-054, ALJ No. 2003-SOX-15 (ARB May 13, 2004) (ALJ's decision must be final before it is eligible for appeal), the earlier decision would be amended to not include the notice of appeal rights, but that such notice would accompany his decision on attorney's fees. The ALJ, however, ruled that his order of reinstatement was still in effect.

BANKRUPTCY

BANKRUPTCY; AUTOMATIC STAY APPLIES TO ARB REVIEW OF ALJ AIR21 DECISION

The Bankruptcy Code's automatic stay provision at 11 U.S.C.A. § 362(a)(1) (West Supp. 2003), applies to cases litigated by private parties arising under AIR21's whistleblower protection provision. See Davis v. United Airlines, ARB No. 02-105, ALJ No. 2001-AIR-5 (ARB May 30, 2003). Accordingly, in Merritt v. Allegheny Airlines, Inc., ARB No. 05-084, 2004-AIR-13 (ARB Aug. 17, 2005), the ARB stayed its review of the ALJ's decision until the automatic stay is lifted or the bankruptcy proceeding are concluded.

BURDEN OF PROOF AND PRODUCTION
   PROTECTED ACTIVITY

PROTECTED ACTIVITY; PRETEXTUAL REASON AS EVIDENCE OF DISCRIMINATION

WHERE THE EVIDENCE ESTABLISHED THAT THE RESPONDENT'S STATED REASON FOR DISCHARGING THE COMPLAINANT – THAT IT DISCOVERED THAT THE COMPLAINANT'S WORK WAS MUCH WORSE THAT IT FIRST SUSPECTED WHEN IT SUSPENDED HIM – WAS PRETEXT, THE ARB FOUND SUCH PRETEXT WAS EVIDENCE OF DISCRIMINATION. LEBO V. PIEDMONT-HAWTHORNE, ARB NO. 04-020, ALJ NO. 2003-AIR-25 (ARB AUG. 30, 2005).

REINSTATEMENT

FAILURE TO REINSTATE; REMEDY FOR

The Complainant requested an opportunity to supplement or reopen the record to show that because the Respondent failed to reinstate him as ordered by the ALJ, the ARB should convert the reinstatement order into an order for front pay. The ARB denied the request, stating that the remedy for a failure to reinstate lies with a district court and not the ARB. See 49 U.S.C.A. § 42121(b)(6). Lebo v. Piedmont-Hawthorne, ARB No. 04-020, ALJ No. 2003-AIR-25 (ARB Aug. 30, 2005).

ATTORNEY'S FEES

ATTORNEY'S FEES; CHARGE FOR TRAVEL TIME SET AT ONE-HALF THE ATTORNEY'S REASONABLE HOURLY RATE

In Merritt v. Allegheny Airlines, Inc., 2004-AIR-13 (ALJ Mar. 28, 2005), the ALJ found that the Complainant's attorney's bill for driving between Rochester, New York and Harrisburg, Pennsylvania was reasonably incurred. The hearing location had originally been in Rochester, but moved to Harrisburg at the Respondent's request for the convenience of its witnesses. The ALJ, however, found that only one-half of the Complainant's attorney's reasonable hourly fee was reasonably charged for travel time.

DELIBERATE VIOLATION BY COMPLAINANT

DELIBERATE VIOLATION OF AIR CARRIER SAFETY REQUIREMENT AS PREVENTING COVERAGE

The ARB found that substantial evidence supported the ALJ's determination that 49 U.S.C. § 4121(d) did not apply to prevent coverage of the Complainant's complaint under AIR21. The Respondent alleged that the Complainant had stated that he had purposely mishandled a repair job to make a point. The Complainant consistently denied making the statement, and it was first presented in attorney-prepared affidavits over a year after the Complainant's discharge. Lebo v. Piedmont-Hawthorne, ARB No. 04-020, ALJ No. 2003-AIR-25 (ARB Aug. 30, 2005).