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.

[Nuclear and Environmental Whistleblower Digest V C 1]
REMAND TO OSHA; FURTHER INVESTIGATION

In Lunsford v. University of Missouri-Rolla, 2000-TSC-1 (ALJ Apr. 7, 2000), the ALJ remanded the matter to OSHA for further investigation and determination where the representations of counsel for both Complainant and Respondent indicated to the ALJ that a timely complaint may have been filed, that timely receipt of properly filed documents was not recorded, and that the appropriate parties were not properly notified or served.

[Nuclear and Environmental Whistleblower Digest VI D]
REQUEST FOR ALJ HEARING; MANNER OF SERVICE NOT RELEVANT IF REQUEST IS IN FACT TIMELY

In Lazur v. U.S. Steel -Gary Works, 1999-ERA-3 (ALJ May 18, 2000), Employer timely filed its request for hearing, but did so by first class mail rather than the means stated in the regulation at 29 C.F.R. § 24.4(d) (fax, telegram, hand delivery or next-day delivery service). The ALJ concluded in his recommended decision that, as long as the hearing request reaches the Office of Administrative Law Judges within the time limits, the manner of service is not relevant.

[Nuclear and Environmental Whistleblower Digest VII A 3]
DISCOVERY; SANCTIONS

In Beliveau Naval Undersea Warfare, 1997-SDW-6 (ALJ Apr. 19, 2000), the ALJ had issued an earlier order in which he found that Respondent had failed to comply with a discovery order; the ALJ denied Complainant's motion for default, but as an alternative, invited a petition for costs, including attorneys' fees, caused by Respondent's failure to comply with the discovery order. Complainant then did file a petition for attorneys' fees. Respondent challenged the ALJ's authority to impose monetary sanctions. The ALJ concluded that he did have such authority, writing:

   Assuming that §18.6(d)(2) preempts the application of Federal Rule 37(b)(2) to this proceeding, I nonetheless hold that awarding attorneys' fees and costs is a permissible sanction under that section of our Rules. Although §18.6(d)(2) does not specifically list an award of fees and costs as a sanction for the failure to comply with a discovery order, the sanctions listed in subparagraphs (i) to (v) of that subsection are not intended to be the exclusive sanctions available for a party's failure to comply with an administrative law judge's order. For §18.6(d)(2) states that "the administrative law judge ... may take such action in regard thereto [a party's failure to comply with an order] as is just, including but not limited to [subparagraphs (i) - (v)]." (Emphasis added) Therefore, the administrative law judge's authority in applying sanctions for a party's failure to comply with a discovery order is limited only by what is just, not to the specific sanctions listed in subsections (i) to (v) of §18.6(d)(2). It would be difficult to argue that an award of $1330.00 in attorney's fees is not just under the facts of this case, and respondent did not attempt to do so.

The ALJ distinguished two decisions of the Secretary -- Krisik v. Latex Construction Co., 1995-STA-23 (Sec'y Oct. 30, 1995) and Billings v. Tennessee Valley Authority, 1989-ERA-16 et al (Sec'y July 29, 1992) -- because both of those cases involved pro se complainants -- a circumstance which presents issues not present when the defaulting party is represented by counsel, and because in those cases, the default led to the ultimate sanction of dismissal of the claim -- a circumstance that would have rendered a further sanction of an award of costs merely punitive. The ALJ also noted that the second case involved abandonment not failure to comply with a discovery order.

[Nuclear and Environmental Whistleblower Digest VII A 5]
SEALING OF RECORD; TAX RECORDS

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), a decision focusing the calculation of damages, the ARB, although not indicating whether it was appropriate to do so, noted that the ALJ had placed Complainant's tax records in a sealed portion of the record.

[Nuclear and Environmental Whistleblower Digest VII A 4]
PRIVILEGED DOCUMENTS; WAIVER OF PRIVILEGE

In Beliveau, Jr. v. Naval Undersea Warfare Center, 1997-SDW-6 (ALJ May 31, 2000), the ALJ affirmed an earlier finding that Respondent waived any applicable privileges to memorandum by turning that document over to the FBI during the course of an investigation. In this respect, the ALJ relied on United States v. Massachusetts Institute of Technology, 129 F.3d 681 (1st Cir. 1997). The ALJ had before him Respondent's motion for reconsideration, in which it contended that the applicable law is In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.), cert. denied, 521 U.S. 1105 (1997), and In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998), for the proposition that it did not waive its attorney-client privilege in turning over the document to the FBI because that privilege "does not apply to evidence relating to possible criminal conduct during the course of a grand jury or other criminal investigation."

The ALJ was not convinced by Respondent's motion, finding that the cited decisions were strictly limited to grand jury proceedings, and the Respondent's memorandum did not qualify for attorney-client privilege in any case.

As an alternative finding, the ALJ also ruled that respondent's inadvertent disclosure of the memorandum to complainant in discovery waived any applicable privileges, under the standards of both Alldread v. City of Grenada, 988 F.2d 1425, 1433 (5th Cir. 1993) and Transamerica Computer Co. v. International Business Machines Corp., 573 F.2d 646 (9th Cir. 1978).

[Nuclear and Environmental Whistleblower Digest VII D 6]
MOTION FOR MORE DEFINITE STATEMENT; CRYSTALLIZATION OF ISSUES

In Forest v. Williams Power Corp., 2000-ERA-16 and 17 (ALJ Apr. 7, 2000), the ALJ had earlier granted Respondent's motion for a more definite statement. Complainant renewed an objection to the granting of Respondent's motion on the ground that Complainant's letter complaints were sufficient to satisfy the pleading requirements for ERA cases. The ALJ agreed that the letters were sufficient for that purpose, but declined to reverse her order granting the motion for more definite statement, holding that she "believe[s] that all parties will benefit from a precise statement as to pertinent allegations, and it will make my consideration of the issues simpler."

[Nuclear and Environmental Whistleblower Digest VII D 6]
PROCEDURE; ALJ SHOULD NOT STRIKE EVIDENCE AND ARGUMENT FROM RECORD

The ARB ruled in Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), that the ALJ erred in striking portions of a motion for summary judgment and attached exhibit filed by Complainant upon the ALJ concluding that the arguments made in those portions of the motion were outside the scope of an ARB remand mandate. The ARB ruled that "[a]pproving this action would establish a procedure that, if abused, could shield erroneous ALJ rulings from review. See Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983) (reversing district court's grant of motion to strike a motion). Accordingly, we reverse the ALJ's grant of the motion to strike and accept into the record the complete motion for summary judgment." Doyle, 1989-ERA-22 (ARB May 17, 2000) @ n.8.

[Nuclear and Environmental Whistleblower Digest VIII A 2 c]
APA REQUIREMENTS; FINDINGS OF FACT AND CONCLUSIONS OF LAW; INSUFFICIENT FOR ALJ MERELY TO RECITE TESTIMONY OF WITNESSES

In Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1 (ARB Apr. 25, 2000), the ARB criticized the ALJ's recommended decision for not making express findings of fact. The ARB wrote:

The ALJ's 20-page recommended decision contains 14 pages captioned "Summary of the Testimony and Other Evidence at Trial," which merely recites the testimony of each witness as it was given. The section of the recommended decision captioned "Findings of Fact and Conclusions of Law" in turn contains a few bare findings. Although a summary of the transcript and exhibits provides a useful index to the record, it is not an adequate substitute for findings of fact. Fortunately, because the Board's review is de novo, the lack of findings in the ALJ's decision does not prevent us from deciding this case.

Id. @ n.11.

[Nuclear and Environmental Whistleblower Digest VIII A 5]
RECUSAL; APPEARANCE OF IMPARTIALITY

In Graf v. Wackenhut Services, L.L.C., 1998-ERA-37 (ALJ Apr. 28, 2000), the ALJ granted Complainant's motion for recusal where, although the ALJ did not find that he harbored any actual bias or prejudice against Complainant's counsel, concluded that a disinterested observer, knowing all the relevant facts (counsel's filing of an ethics complaint about the ALJ and the responses thereto), might reasonably question the ALJ's impartiality. The ALJ employed, in this regard, the judicial recusal standard at 28 U.S.C. § 455(a).

[Nuclear and Environmental Whistleblower Digest VIII A 7]
LAW OF THE CASE; ON REMAND ALJ MAY DECIDE ISSUES LEFT OPEN BY ARB MANDATE

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), Respondent argued that Complainant's request for an enhancement of his back pay award to take into account the adverse tax consequences of receiving a lump sum payment should be denied on the ground, inter alia, that the request was outside the scope of the ARB's earlier remand order. The ALJ agreed with this objection and struck those portions of the Complainant's motion.

The ARB disagreed with the ALJ, looking by analogy to the powers of a district court upon remand of a case by an appellate court. The ARB wrote that "[t]he Supreme Court has reasoned that '[t]he doctrine of law of the case comes into play only with respect to issues previously determined,'and on remand, a lower court '"may consider any matters left open by the mandate"' of the superior court. Quern v. Jordan, 440 U.S. 332, 337 n.18 (1979), quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 256 (1895). See also Liberty Mutual Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir. 1982) and 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §4478, at 793 (1981)." Doyle, 1989-ERA-22 (ARB May 17, 2000) @ 10-11. Thus, the ARB found that "because the Board had not decided the issue of a tax enhancement, ... the ALJ was free to decide it."

[Nuclear and Environmental Whistleblower Digest VIII A 8]
EX PARTE COMMUNICATION; OBLIGATION TO INFORM OPPOSING PARTY AND CONSIDER SANCTIONS

In Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1 @ n.15 (ARB Apr. 25, 2000), the ARB noted that the record did not indicate that the ALJ had informed Respondent of a post-hearing, ex parte communication from Complainant, or that the ALJ had sanctioned Complainant for the communication. See 29 C.F.R. §18.38. The communication reported Complainant's belief that a witness had committed perjury.

[Nuclear and Environmental Whistleblower Digest VIII B 2 a]
STANDARD OF REVIEW; DE NOVO ON BOTH FACTS AND LAW; PREPONDERANCE OF EVIDENCE STANDARD

"[T]he Board is not bound by either the ALJ's findings of fact or conclusions of law, but reviews both de novo. * * * In reviewing an ALJ recommended decision under the whistleblower provisions of the environmental statutes, we apply the APA's 'preponderance of the evidence standard.'... Evidence meets the 'preponderance of the evidence' standard when it is more likely than not that a certain proposition is true." Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1 (ARB Apr. 25, 2000) @ 7 (citations omitted).

[Nuclear and Environmental Whistleblower Digest VIII B 2 a]
CREDIBILITY DETERMINATION; ARB OVERRULES ALJ

In Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1 (ARB Apr. 25, 2000), the ARB rejected the finding of the ALJ that one of Respondent's witnesses was not credible, where the ARB found that the ALJ erred in admitting a post-hearing deposition of the Wage and Hour investigator that was the basis for the ALJ's finding that the witness was not credible. The ARB also, ruled, however, that even if the deposition had been properly admitted into the record, the ARB would not conclude that it demonstrated that Respondent's witness had lied. The ARB held that "[t]he totality of Rodenhausen's testimony does not support the ALJ's finding that Shaulis lied or his conclusion that the Company's explanation for the termination was 'pretext and untrue.'" Id. @ n.18.

[Nuclear and Environmental Whistleblower Digest IX D 1]
REOPENING OF RECORD; FAILURE OF ALJ TO APPLY 29 C.F.R. § 18.54(c) AFTER RECORD HAD BEEN CLOSED

In Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1 (ARB Apr. 25, 2000), the ARB found that the ALJ erred in accepting into the record the deposition of the Wage and Hour investigator after the conclusion of the hearing. The ARB noted that 29 C.F.R. § 18.54(a)

provides that "[w]hen there is a hearing, the record shall be closed at the conclusion of the hearing unless the administrative law judge directs otherwise." 29 C.F.R. §18.54(a). The ALJ did not direct that the record remain open at the end of the hearing on liability; therefore by operation of Rule 18.54(a), the record closed on June 21, 1995. Rule 18.54(c) restricts the evidence which may be accepted after the close of the record: "Once the record is closed, no additional evidence shall be accepted into the record except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record." Id. at 18.54(c)(emphasis added). As we discuss below, Masek did not demonstrate that Rodenhausen's testimony met the requirements of Rule 18.54(c), and the ALJ therefore erred in allowing the deposition and admitting the testimony.

Masek, 1995-WPC-1 @ 9. The post-hearing deposition had been critical to the ALJ's finding that one of Respondent's witnesses was not credible.

[Nuclear and Environmental Whistleblower Digest IX D 3]
AUTHORITY OF ARB TO RECONSIDER

In Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB May 16, 2000), the ARB held that it has the inherent authority to reconsider its decisions in cases involving complaints under the employee protection provisions of the TSCA, SDWA, CAA, SWDA, CWA (aka FWPCA), and CERCLA.

[Nuclear and Environmental Whistleblower Digest IX D 3]
AUTHORITY OF ALJ TO RECONSIDER DECISION

In Mourfield v. Frederick Plaas & Plaas, Inc., 1999-CAA-13 (ALJ Apr. 25, 2000), the ALJ reviewed the applicable statutes and regulations and found no express authority for an ALJ to reconsider a recommended decision and order. The ALJ also reviewed the decisional law, and concluded that it suggested that an ALJ does not have jurisdiction over a matter once the recommended decision and order has been issued. He found that once he issued his Recommended Decision and Order, jurisdiction passed to the ARB. Accordingly, he denied the motion for reconsideration.

[Nuclear and Environmental Whistleblower Digest IX I]
CONTINUANCE; TIME LIMIT FOR ISSUANCE OF FINAL ADMINISTRATIVE DECISION

In Forest v. Williams Power Corp., 2000-ERA-16 and 17 (ALJ Apr. 7, 2000), one Respondent argued that Complainant should not be granted a continuance on the ground that an ALJ does not have the discretion to waive the statutory and regulatory deadlines under the circumstances before the ALJ. See 42 U.S.C. § 5851(b)(2)(A) and 29 C.F.R. § 24.6(a). The ALJ rejected this argument based on the ARB's holding in Timmons v. Mattingly Testing Services, 1995-ERA-40 (ARB June 21, 1996), that the statutory and regulatory requirements are directory, not mandatory, and should not interfere with the full and fair presentation of a case.

The ALJ went on to explain succinctly why she found that there were compelling reasons to order a continuance:

[A] complainant who waives the statutory and regulatory deadlines should be allowed time to conduct discovery for the very practical reason that the complainant must go first, and if the complainant is not prepared there can be no full and fair presentation of the case. Although, as Complainant has noted, [the objecting Respondent] has claimed no prejudice, if it is in any way prejudiced by the delay, it will be provided with the opportunity to combat such prejudice. Further, as [the other Respondent] has suggested, there are compelling reasons to allow the parties time to prepare and file dispositive motions, in order to ensure the full and fair presentation of the case. Also, as [the other Respondent] has noted, as a practical matter the 90-day deadline has expired with respect to at least the first of the complaints (filed on November 29, 1999), and allowing for completion of the hearing and preparation of a decision within 20 days (in accordance with 29 C.F.R. § 24.7), the deadlines cannot be met with respect to the second complaint (filed on January 31, 2000) either.

[Nuclear and Environmental Whistleblower Digest IX K]
STAY PENDING APPEAL IN FEDERAL COURTS

The standard for determining whether an ARB final decision should be stayed pending judicial review is set out in Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000):

(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal;
(2) the likelihood that the moving party will be irreparably harmed absent a stay;
(3) the prospect that others will be harmed if the court grants the stay; and
(4) the public interest in granting a stay.

Id. @ 8, citing Dutkiewicz v. Clean Harbors Environmental Svcs, Inc., ARB No. 97-090, ALJ No. 1995-STA-34 (ARB Sept. 23, 1997); Goldstein v. Ebasco Constructors, Inc., 1986-ERA-35 (Sec'y Aug. 31, 1992). In regard to these elements, (1) the ARB was not convinced that the errors cited by Respondent would be likely to permit it to prevail on the merits of the appeal; (2) even though Respondent alleged that it would have to pay about $600,000 to Complainant which it may not be able to recover if it succeeds on appeal, the ARB found that it was unlikely that Respondent would prevail on appeal and that it had not shown that the purported economic loss would threaten the company's very existence; (3) there were compelling reasons to find that further delay in paying Complainant the damages owed would further damage him; and (4) the public interest is that Complainant be made whole for his injuries.

[Nuclear and Environmental Whistleblower Digest IX M]
ATTORNEY'S FEES; RIGHT OF FORMER COUNSEL TO PETITION FOR ARB REVIEW

In Gaballa v. Carolina Power & Light Co., ARB No. 99-090, ALJ Nos. 1996-ERA-43, 1998-ERA-24 (ARB May 23, 2000), the ARB granted Complainant's motion to strike Complainant's former counsel's petition for review, who sought review of the ALJ's approval of a settlement agreement between Complainant and Respondent on the ground that the settlement was allegedly invalid as it failed to address the former counsel's lien for attorney's fees.

The ARB struck Complainant's former counsel's petition for review because the Part 24 regulations provide only for ARB review of petitions by parties, and (1) he had not petitioned the ALJ for party status, and therefore the ALJ did not make the determination necessary to grant him that status; (2) assuming arguendo that his motion to intervene could be construed as a petition for party status, it was untimely; and (3) the dispute regarding his fees was essentially contractual in nature, and beyond our the ARB's adjudicatory authority under the ERA.

[Nuclear and Environmental Whistleblower Digest XI B 3]
PRETEXT; JUDGMENT FOR COMPLAINANT CANNOT BE BASED SOLELY ON DISBELIEF OF RESPONDENT'S PROFFERED REASON FOR ADVERSE EMPLOYMENT ACTION

In Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1 @ n.15 (ARB Apr. 25, 2000), the ALJ concluded that Complainant established that Respondent's proffered reason for the adverse employment action was pretext where the ALJ found that a critical witness for Respondent on the issue of causation was not credible. The ARB ruled that the ALJ committed an analytical error in this regard. The Board quoted St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993): "The Court noted that 'a reason cannot be proved to be 'a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason.' Id. at 515. 'It is not enough . . . to disbelieve the employer . . . .'"

[Nuclear and Environmental Whistleblower Digest XII B 2 a]
PROTECTED ACTIVITY; REPORT TO LOCAL FIRE DEPARTMENT

Complaints to and cooperation with local authorities are protected under the whistleblower provisions; thus Complainant's report to a local fire department of a possible environmental hazard was found to be protected activity in Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1 @ 7 (ARB Apr. 25, 2000).

[Nuclear and Environmental Whistleblower Digest XIII B 18]
PRE-EMPLOYMENT RELEASE THAT INCLUDES PROVISION THAT SUGGESTS WAIVER OF EMPLOYEE PROTECTIONS OF ERA; REQUEST TO SIGN IS A VIOLATION EVEN THOUGH PROVISION WAS UNENFORCEABLE BEFORE DOL

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB was considering on review an ALJ recommended decision and order on damages issued pursuant to an earlier ARB remand order. In describing the background to the decision, the ARB further explained the rulings on the merits.

The ARB explained that Complainant applied for a job with Respondent. Respondent asked applicants to sign an authorization form for release of records pertaining to prior employment. Complainant, who had been a whistleblower in a prior job at a different nuclear plant, informed one of Respondent's managers of his earlier whistleblowing and objected to certain language in a release form because he viewed it as a waiver of his rights under the ERA. Respondent did not hire Complainant because of his refusal to sign the release as written.

The presiding ALJ had concluded that Complainant had misconstrued the release as jeopardizing whistleblower remedies, and that Respondent had a right to insist that applicants sign the release and to decline to hire those who did not. On review, the Secretary reversed the ALJ, finding that Respondent's refusal to hire Doyle violated the ERA.

In a footnote to its decision on damages, the ARB clarified:

Although the Secretary would not have enforced such a waiver, 1994 Sec'y D&O at 4, merely asking Doyle to sign it was a violation of the ERA's whistleblower provision. See Connecticut Light & Power Co. v. Sec'y of Labor, 85 F.3d 89 (2d Cir. 1996) (employer's proffer of a settlement that would have restricted employee's access to judicial and administrative agencies violated the ERA). Accord Pace v. Kirshenbaum Investments, No. 92-CAA-8, Sec'y Final Order Approving Settlement Agreement, Dec. 2, 1992, slip op. at 1 (waiver of a person's ERA protected rights based on future employer action was contrary to public policy and would not be enforced).

[Nuclear and Environmental Whistleblower Digest XVI B 4]
STIPULATION; ARB WILL HOLD PARTIES TO STIPULATION ABSENT A PROVISION THAT IS CONTRARY TO PUBLIC POLICY

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), Complainant sought an additional year of front pay because Respondent allegedly did not comply with a verbal agreement to reach promptly a full stipulation as to the damages. The ARB observed that the parties had reached a final stipulation as to damages including front pay and held that absent a provision of a stipulation that is contrary to public policy, the parties will be held to their bargain where they have fairly entered into the stipulation.

[Nuclear and Environmental Whistleblower Digest XVI C 2 c vi]
BACK PAY; ENHANCEMENT FOR TAX CONSEQUENCES OF LUMP SUM PAYMENT

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB held that "a complainant is entitled to an enlargement of the back pay award to reflect the adverse tax consequences of receiving a lump sum payment that represents many years of back pay." The ARB, however, also held that "the plaintiff the burden of providing credible evidence of the calculation of the difference in tax payments between receiving back pay as a lump sum and receiving the pay in the various years at issue. . . . [A] failure to provide evidence on the tax enhancement calculation generally is held against the plaintiff who seeks the enhancement." In Doyle, the ARB concluded that Complainant had not met this burden, and therefore denied his requested enhancement of back pay to allow for tax consequences.

[Nuclear and Environmental Whistleblower Digest XVI C 2 e]
BACK PAY AND FRONT PAY; POST-JUDGMENT INTEREST

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB observed that "[t]he usual interest rate employed on back pay awards under ... whistleblower provisions is the interest rate for underpayment of federal taxes, set forth at 26 U.S.C. §6621(a)(2) (short-term Federal rate plus three percentage points)." Id. @ 20 (citations omitted). The ARB held that in whistleblower cases, it awards the same rate of interest on back pay awards, both pre- and post-judgment that is, compounded and posted quarterly.

[Nuclear and Environmental Whistleblower Digest XVI C 2 e]
BACK PAY AND FRONT PAY; INTEREST; PREJUDGMENT COMPOUNDED QUARTERLY AT RATE DETERMINED UNDER 26 U.S.C. §6621(b)(3) PLUS THREE PERCENTAGE POINTS

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB wrote: "In light of the remedial nature of the ERA's employee protection provision and the 'make whole' goal of back pay, we hold that the prejudgment interest on back pay ordinarily shall be compound interest. Our reasoning applies equally to back pay awards under analogous employee protection provisions of the other federal statutes under which we issue administratively final decisions [the CAA, CERCLA, FWPCA, SDWA, SWDA, STAA and TSCA]. Absent any unusual circumstance, we will award compound interest on back pay in cases arising under all of these employee protection provisions." Id. @ 18 (footnote omitted). The ARB held that the compounding of interest should be quarterly. The ARB continued:

...As provided by the ALJ and the parties' stipulation, the interest rate is that charged on the underpayment of Federal income taxes, which consists of the Federal short-term rate determined under 26 U.S.C. §6621(b)(3) plus three percentage points. See 26 U.S.C. §6621(a)(2); FRD&O at 2; 1999 Stip. at ¶4.

   The Federal short-term interest rate to be used is the so-called "applicable federal rate" (AFR) for a quarterly period of compounding. See, e.g., Rev. Rul. 2000-23, Table 1.

The ARB also applied this ruling to prejudgment interest on a front pay award.

[For additional details on how the interest calculation is made, see the decision @ 18-19]

[Nuclear and Environmental Whistleblower Digest XVI D 4 a]
COMPENSATORY DAMAGES; COMPARATIVE AWARDS; NON-DOL CASES

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB compared the circumstances of Complainant's situation with a similar situation in Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994- TSC-3 and 4, (ARB Oct. 25, 1999), for purposes of considering additional damages incurred during remand proceedings. In a footnote, the ARB observed that "[i]n Leveille, we also noted that Administrative Law Judges may appropriately consider the level of compensatory damages awarded in employment discrimination cases brought outside the Labor Department's administrative law system."

[Nuclear and Environmental Whistleblower Digest XVI D 4 d]
COMPENSATORY DAMAGES; ENHANCEMENT FOR TAX CONSEQUENCES

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB implicitly held that compensatory damages may be enhanced to account for a 1996 amendment to the Internal Revenue Code to "provide that compensatory damages received for non-physical injuries, such as emotional distress, may not be excluded from gross income. Pub. L. No. 104-188, §1605(b), 110 Stat. 1838-39. This change applies to amounts received after August 20, 1996, in taxable years ending after such date. Id., §1605(d)." In this regard, the complainant has the burden to establish the amount of any such tax enhancement.

In a footnote, the ARB observed that the parties had not agreed to any enhancement of the compensatory damages award in their stipulations, which merely recited the fact that the ARB had previously awarded such damages and the amount thereof.

[Nuclear and Environmental Whistleblower Digest XVI D 4 e]
COMPENSATORY DAMAGES; ADDITION FOR PERIOD DURING WHICH CASE WAS REMANDED; SUCH ADDITIONS ARE NOT BASED IN PUNISHMENT

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB awarded Complainant additional compensatory damages for the harm he suffered during the several years of a remand proceeding following an earlier order awarding damages. Comparing the circumstances of Complainant's situation with a similar situation in Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994- TSC-3 and 4, (ARB Oct. 25, 1999), the ARB awarded an additional $40,000, that when combined with the earlier ordered damages totaled $80,000 in compensatory damages.

During the remand proceedings, Respondent had not paid the earlier ordered damages or otherwise complied with the ordered remedies. Respondent had not complied with an order to correct a notation that Complainant had been denied access to a nuclear plant, thereby preventing Complainant from obtaining any employment in the nuclear field. The ARB, however, noted that the reason for the additional award was not based on punishment for Respondent's inaction. The ARB wrote: "We reject Doyle's claim of entitlement to additional damages because of Hydro's failure to comply with the earlier-ordered remedies. A party need not comply with decisions that are not administratively final, and this is the administratively final decision in Doyle's case." Doyle, 1989-ERA-22 (ARB May 17, 2000) @ n.14.

[Nuclear and Environmental Whistleblower Digest XVI E 3 e ii]
ATTORNEY FEES AND COSTS; ADDITUR TO REFLECT DELAY IN PAYMENT

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB awarded an enlargement to Complainant's attorney fee award to compensate for delay of nearly four years in payment. The ARB based the award on a comparison of (1) the number of hours multiplied by the current rates of the attorneys and law clerks, and (2) the earlier award multiplied by the percentage increase in Consumer Price Index - All Urban Consumers, U.S. city average (CPI-U), between the original award the most recent CPI-U figure available. The addition is then based on the lower of these two calculations.

For the first calculation, the ARB took the number of hours approved by the ALJ in the earlier fee order, and multiplied by the difference in the hourly rates approved in that order the hourly rates approved by the ALJ in the a fee order issued at the conclusion of remand proceedings.

For the second calculation, the ARB determined the percentage change in the CPI-U, and then multiplied the earlier award by this percentage.

[Nuclear and Environmental Whistleblower Digest XVI E 3 d 5 ]
ATTORNEY'S FEES; REDUCTION FOR FILING BRIEFS EXCEEDING ARB PAGE LIMITATIONS

In Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB May 16, 2000), the ARB reconsidered an earlier decision reducing requested attorney's fees for time expended on a reply brief that exceeded the page limitation in the Board's briefing schedule, and also for work on a response to Respondent's Reply brief that was not authorized by the briefing schedule. The ARB had erroneously based the earlier ruling in part on the ground that Complainant's attorney had failed to file for leave to exceed the page limits and to file a reply brief.

Complainant argued that the brief on compensatory damages needed to exceed the page limits because an extensive review of prior awards for emotional suffering and damage to professional reputation was required. The ARB disagreed, finding that the instant case was in fact less complicated than other cases in which the complainants had not found it necessary to file briefs in excess of the ARB's page limit. The ARB, however, found that the reply brief was warranted, albeit limited to 15 pages.

The ARB calculated a reduction in the requested attorney fee by using the ratio that the total number of pages filed exceeded the total number of pages allowed.

[Nuclear and Environmental Whistleblower Digest XVI E 3 f]
ATTORNEY'S FEES; LITIGATION OF ATTORNEY'S FEES ISSUE; RESPONDENT'S FAILURE TO COMPLY WITH ARB'S PROCEDURES

In Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB May 16, 2000), the ARB authorized an award for attorneys' fees and costs for time reasonably expended litigating the attorneys' fees issue. The ARB noted in this regard that Respondent had often failed to comply with the procedural expectations of the Board. The Board wrote: "Respondent's careless regard for its litigation responsibilities has imposed additional burdens on the Complainant, thus contributing to Complainant's entitlement to additional fees." Id. @ n.1.

[Nuclear and Environmental Whistleblower Digest XVI E 4 c]
ATTORNEY FEES; LEGAL WORK IN COURT OF APPEALS; SIXTH CIRCUIT LAW

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB declined to reverse its position acquiescing in the Sixth Circuit in the decision in DeFord v. Secretary of Labor, 715 F.2d 231, 232 (6th Cir. 1983), in which the court rejected the Secretary's authority to award attorney fees for work in the court of appeals in ERA whistleblower cases. See Pillow v. Bechtel, ARB No. 97-040, ALJ No. 87-ERA-35 , slip op. at 3 (ARB Sept. 11, 1997). The ARB would have awarded attorneys fees for work in the Third Circuit, however, if such had been incurred (Complainant had appeared pro se before the Third Circuit).

[Nuclear and Environmental Whistleblower Digest XVI E 6]
COSTS; NOT SUBJECT TO ENHANCEMENT FOR DELAY IN PAYMENT

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB had ruled that an additur may be made to attorney's fees for a delay in payment. The Board indicated, however, that costs are not subject to additur for delay. See id. @ n.16.

[Nuclear and Environmental Whistleblower Digest XVI E 6]
COSTS; COSTS INCURRED IN ASSOCIATION WITH WITNESS TESTIMONY

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB -- over the objections of Respondent -- awarded the full amount claimed by Complainant for costs incurred in association with the testimony of a witness whose testimony had, in part, not been credited by the ALJ. The ARB, citing Complainant's argument that both the ALJ and the ARB credited part of the testimony, and, based on the fact the ARB had itself relied on the testimony in ordering back pay, found that the costs associated with obtaining the testimony were reasonably incurred. Thus, the ARB allowed the entire costs on this item sought by Complainant.

[Nuclear and Environmental Whistleblower Digest XVI E 6]
ATTORNEY FEES; NOT AVAILABLE FOR PRO SE LITIGANT

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB declined to award attorneys fees for work in the Third Circuit, because Complainant had appeared pro se before the Third Circuit, and a pro se litigant under the ERA is not entitled to an attorney fee award.

[Nuclear and Environmental Whistleblower Digest XVI E 6]
COSTS; ATTENDANCE OF COMPLAINANT AT DEPOSITION OF WITNESS FOR RESPONDENT

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ALJ denied Complainant's claim for expenses incurred in attending the deposition of one of Respondent's witnesses because Complainant's attendance was not reasonably required. Before the ARB, Complainant argued that he had the right to attend the deposition and, as the lead investigator in the case, attended to provide advice and guidance in questioning. The ARB found that the ALJ was in the best position to assess whether Complainant reasonably incurred the cost of attending the deposition, and deferred to his assessment that Complainant's attendance was not a cost "reasonably incurred" in bringing the complaint.

[Nuclear and Environmental Whistleblower Digest XVI E 6]
COSTS; LACK OF DOCUMENTATION OR VERIFIABLE ALTERNATIVE

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), Complainant applied for costs incurred in attending a mediation ordered by the ALJ. Complainant, however, had lost his receipts when a hurricane damaged his home. The ALJ awarded mileage expense because it was possible to calculate the distance from Complainant's home to the mediation location; however, the ALJ, citing Johnson v. Bechtel Construction Co., 1995-ERA-11 (Sec'y Feb. 26, 1996), denied expenses for meals and lodging because there was neither any documentation nor any alternative way for the ALJ to ascertain the exact expenses incurred. The ARB affirmed the ALJ on this issue.

Similarly, the ARB declined to disturb the ALJ's rulings denying costs for undocumented expenses for local travel, faxes and photocopies. The ARB held that the ALJ was free to accept or reject the reason Complainant gave for his inability to produce all receipts.

[Nuclear and Environmental Whistleblower Digest XVI G 2 a]
POSTING; ORDER TO POST RESCINDED WHERE SUCH RELIEF WOULD NOT BE EFFECTIVE

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB rescinded an earlier order requiring a putative successor company to post copies of the ARB's decision at its nuclear operations. Respondent argued that it had been sold, and the putative successor company never reentered the decontamination business thus rendering a posting requirement unnecessary and ineffective. Complainant argued that this was a mis-characterization, and that the putative successor company still regularly employees decontamination technician contractors.

The ARB declined to engage in an analysis of whether the putative successor company meets the criteria for liability as a successor corporation given that the litigation had already been prolonged and that Respondent had offered to post a supersedeas bond to secure payment of damages. In regard to the posting requirement, the ARB found that it was no longer a practical remedy to require the putative successor corporation to post, or even to impose an alternative publication in a general circulation newspaper as was required in Smith v. Esicorp, Inc., ARB No. 97-065, ALJ No. 1993-ERA-16 (ARB Aug. 27, 1998). The ARB, however, affirmed its order to require Respondent itself to post the decision at its own facilities.

[Nuclear and Environmental Whistleblower Digest XVII G 9]
SETTLEMENT BEFORE ARB IN ENVIRONMENTAL WHISTLEBLOWER CASE; SINCE ALJ DECISION IS RENDERED INOPERATIVE BY SECTION 24.8, ARB'S ORDER APPROVING SETTLEMENT NEED NOT INCLUDE ORDER VACATING ALJ DECISION

In Pawlowski v. Hewlett-Packard Co., ARB No. 99-089, ALJ No. 1997-TSC-3 (ARB May 5, 2000), the parties submitted a settlement agreement to the ARB for approval while the case was pending ARB review. The parties submission included a request that the ARB vacate the ALJ's recommended decision. The ARB ruled that Respondent's timely appeal rendered the ALJ's Recommended Decision and Order inoperative by law, 29 C.F.R. §24.8(a), and therefore, the parties' request that the ARB vacate the Recommended Decision and Order was moot.

[Editor's note: section 24.8(a) only applies to render ALJ recommended decisions in environmental whistleblower cases inoperative during ARB review. In ERA cases, an ALJ's preliminary order of relief is still effective during the period that the ARB is conducting its review.]

[Nuclear and Environmental Whistleblower Digest XVIII C 8]
DISMISSAL; FAILURE TO PROSECUTE

In Solnicka v. Washington Public Power Supply System, ARB No. 00-009, ALJ No. 1999-ERA-19 (ARB Apr. 25, 2000), the ARB denied Complainant's fifth request for an extension of time to file his appellate brief, and dismissed the appeal for failure to prosecute, where Complainant had been warned after the fourth extension that further extensions would be granted only for exceptional circumstances, the fifth request for an extension had been filed on the day before the brief was due, and the fifth request for an extension was based on a request to delay briefing until the issuance of a report by Respondent concerning the safety of cranes an issue not relevant to the basis for Complainant's appeal. The ARB wrote:

    Courts possess the "inherent power" to dismiss a case for lack of prosecution. Link v. Wabash Railroad Co., 370 U.S. 626, 630 (1962). This power is "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Id. at 630-631. Like the courts, this Board must necessarily manage its docket in an effort to "achieve the orderly and expeditious disposition of cases." Given Solnicka's failure to submit an initial brief as ordered, we find that Solnicka has failed to prosecute his case.

[STAA Whistleblower Digest II B 3]
TIMELINESS OF COMPLAINT; OSHA RESPONSE TO VERBAL COMPLAINT

In Harrison v. Roadway Express, Inc., 1999-STA-37 (ALJ Dec. 16, 1999), Complainant visited an OSHA office within the statutory period for filing a STAA complaint and made an oral complaint. The OSHA official told Complainant that the complaint would not be accepted prior to the exhaustion of CBA grievance-arbitration procedures. Respondent argued that Complainant's visit failed to satisfy the requirements for filing a complaint that OSHA had failed to follow procedures set forth in its Investigator's Manual. The ALJ rejected this argument, finding that Complainant had done everything required to file a complaint. Respondent also complained that it was not put on notice that the allegations of discrimination were made; the ALJ, however, framed the issue as whether Respondent had sufficient notice to prepare for the formal hearing before the ALJ, and concluded that it clearly had.

[STAA Whistleblower Digest II H 4 b]
DECLARATORY ORDER; AUTHORITY OF ARB TO ISSUE

In Ass't Sec'y & Bates v. West Bank Containers, ARB No. 99-055, ALJ No. 1998-STA-30 (ARB Apr. 28, 2000), the ARB decided on substantial evidence review that Complainant could not succeed on the merits because Respondent had a legitimate business motive for terminating Complainant's employment. Nonetheless, it proceeded to address whether Complainant had engaged in protected activity, citing 5 U.S.C. §554(e), for the proposition that an agency may issue a declaratory order to terminate a controversy or remove uncertainty. The ARB indicated that the "[t]he sole purpose of th[e] discussion [of whether the Complainant engaged in protected activity] is to clarify the process by which OSHA can legitimately express and invoke deference to its interpretive views of §405(a)(1)(A) during an enforcement proceeding."

[STAA Whistleblower Digest III A]
STATUTORY CONSTRUCTION; OBLIGATION OF ALJ NOT TO ACCEPT AS STARE DECISIS APPELLATE RULINGS WHERE OSHA DID NOT ACTIVELY PARTICIPATE IN PRIOR CASE

In Ass't Sec'y & Bates v. West Bank Containers, ARB No. 99-055, ALJ No. 1998-STA-30 (ARB Apr. 28, 2000), the ALJ ruled as a matter of law that Complainant engaged in protected activity when he made internal safety complaints of an overweight load. Respondent had argued that safety complaints are not protected activity within the meaning of §405(a)(1)(A) unless (a) they relate to an actual violation of a commercial motor vehicle regulation, standard or order and (b) the regulation, standard or order in question is a safety law. OSHA argued that it makes no difference whether a commercial motor vehicle regulation was actually violated or whether the regulation purportedly violated is a safety law -- rather, OSHA contended that all that is required by §405(a)(1)(A) is that the employee have a reasonable belief that the events in question violate a motor vehicle safety regulation. The ALJ treated the meaning of §405(a)(1)(A) as a matter previously resolved in Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 356-57 (6th Cir. 1992) -- in which the Sixth Circuit held that protection under §405(a)(1)(A) is not dependent on an actual violation and Ex rel Galvin v. Munson Trans., Inc., 1991-STA-41 (Sec'y Aug. 31, 1992) -- in which the Secretary of Labor stated that it was undisputed that the driver refused to operate an overweight truck and that his refusal was based on the potential violation of federal regulations and a safety concern for himself and the public.

The ARB found that it was error for the ALJ to have relied on these prior decisions and not to have resolved the statutory construction issue presented by Respondent's and OSHA's interpretations of section 405(a)(1)(A). The ARB wrote:

   In this case, the ALJ should have resolved the interpretive dispute between OSHA and West Bank, which was a dispute over the meaning of statutory text, by applying the traditional tools of statutory construction. The first step in that process is to determine whether Congress' intention is clear. If Congress' intentions are clear, they must be given effect. If it is not clear how Congress intended the statute to apply to the matter in issue, the adjudicator must determine whether the agency's clarifying interpretation is rational and consistent with the statute. If the adjudicator concludes that the agency's interpretation is reasonably consonant with the statutory structure and purpose, the adjudicator should defer to it. PBGC v. LTV Corp., 496 U.S. 633, 650, 110 S.Ct. 2668, 2678 (1990); Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 2781 (1984); OFCCP v. Keebler Co., No. 97-127 (ARB, Dec. 21, 1999).

   We assume, for purposes of this discussion, that Congress was silent on the question whether §405(a)(1)(A) requires proof that the related safety law was actually violated, and that OSHA's interpretive views on that question would therefore have to be evaluated for reasonableness. If that is so, it necessarily follows that OSHA would have to have made clear to the ALJ what its reasons were for construing §405(a)(1)(A) as not requiring evidence of an actual violation. These reasons would certainly include policy choices and OSHA's experience and expertise in administering §405(a)(1)(A) and other, similar, statutes. Without a clear explanation from OSHA for the view it has taken, the ALJ has no basis on which to evaluate the reasonableness of OSHA's ultimate conclusion. "[I]f the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable. It will not do for a court to be compelled to guess at the theory underlying the agency's action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive. In other words, 'We must know what a decision means before the duty becomes ours to say whether it is right or wrong.'" SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577 (1947) (internal citation omitted).

   Equally important, without a clear explanation from OSHA, the ALJ lacks a legal basis for accepting OSHA's ultimate conclusion. This is because "an agency's order must be upheld, if at all, 'on the same basis articulated in the order by the agency itself.'" FPC v. Texaco, Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 2326 (1974), quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239, 245-246 (1962). "[A] simple but fundamental rule of administrative law" is "that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action. . . ." Chenery, supra.

The ARB acknowledged the principle of stare decisis, but held that where the agency itself is a litigant in a case which presents an interpretation issue previously decided without the agency's input "it makes no sense for the agency to 'rely' on the earlier decision as if it were stare decisis concerning the meaning of the unclear text." The ARB held that in the instant proceeding, "[n]o prior decisional rulings existed that represented a meaningful statutory construction analysis, replete with consideration of OSHA's policy and experiential reasoning." Applying statutory interpretation, the ARB held that §405(a)(1)(A) requires a link to a motor vehicle safety law.

In regard to the Sixth Circuit holding that protection under §405(a)(1)(A) is not dependent on an actual violation, the ARB found that "the Sixth Circuit's deference to OSHA's appellate argument about the meaning of §405(a)(1)(A) cannot be taken at face value" because OSHA had not participated in the litigation of the case before the ALJ or the Secretary of Labor, and the Solicitor's role in Respondent's appeal to the Sixth Circuit was to defend the Secretary's ruling in favor of the complainant. The ARB stated that "[w]hether the court of appeals fully appreciated that the views expressed in the Department's brief to the court were not views that OSHA had expressed in the administrative litigation is impossible to know."

The ARB then reviewed the caselaw in the area, and without deciding the issue, concluded that it was "inconsistent, replete with conclusory statements, short on analysis, and virtually bereft of OSHA input."

One member of the ARB dissented from the part of the decision rejecting the ALJ's and OSHA's analysis of the protected activity issue under Section 405(a), finding that "[o]pinions issued by the Secretary, the ARB, and the courts provide well reasoned analyses interpreting the 'complaint clause' of the STAA, and thus provide us with an adequate standard against which to gauge the Assistant Secretary's interpretation of Section 405(a)."

[STAA Whistleblower Digest IV B 2 e]
LEGITIMATE, NON-DISCRIMINATORY REASON FOR ADVERSE EMPLOYMENT ACTION; THREAT BY EMPLOYEE TO ABANDON LOAD

In Ass't Sec'y & Bates v. West Bank Containers, ARB No. 99-055, ALJ No. 1998-STA-30 (ARB Apr. 28, 2000), the ARB found a respondent's unwillingness to employ a driver who reserves the right to drop loads that he considers "too heavy" is compelling evidence of a legitimate business motive. Where the parties litigated this case on the theory that Respondent had only one motive for terminating Complainant -- either animus because of Complainant's safety complaints or an unwillingness to employ a driver who threatens to drop loads based on his subjective judgments -- and the ARB concludes that the record supports only the latter and not the former, the complaint will be dismissed.

[STAA Whistleblower Digest IX B 2 b viii]
BACK PAY AND FRONT PAY; INTEREST; PREJUDGMENT COMPOUNDED QUARTERLY AT RATE DETERMINED UNDER 26 U.S.C. §6621(b)(3) PLUS THREE PERCENTAGE POINTS

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB wrote: "In light of the remedial nature of the ERA's employee protection provision and the 'make whole' goal of back pay, we hold that the prejudgment interest on back pay ordinarily shall be compound interest. Our reasoning applies equally to back pay awards under analogous employee protection provisions of the other federal statutes under which we issue administratively final decisions [the CAA, CERCLA, FWPCA, SDWA, SWDA, STAA and TSCA]. Absent any unusual circumstance, we will award compound interest on back pay in cases arising under all of these employee protection provisions." Id. @ 18 (footnote omitted). The ARB held that the compounding of interest should be quarterly. The ARB continued:

...As provided by the ALJ and the parties' stipulation, the interest rate is that charged on the underpayment of Federal income taxes, which consists of the Federal short-term rate determined under 26 U.S.C. §6621(b)(3) plus three percentage points. See 26 U.S.C. §6621(a)(2); FRD&O at 2; 1999 Stip. at ¶4.

   The Federal short-term interest rate to be used is the so-called "applicable federal rate" (AFR) for a quarterly period of compounding. See, e.g., Rev. Rul. 2000-23, Table 1.

The ARB also applied this ruling to prejudgment interest on a front pay award.

[For additional details on how the interest calculation is made, see the decision @ 18-19]

[STAA Whistleblower Digest XI C 3]
DISMISSAL OF APPEAL; NEITHER PARTY FILED AN APPELLATE BRIEF

Where neither party filed an appellate brief, the ARB in Lepley v. Farmers Union Elevator at New Salem, ARB No.00-046, ALJ No. 1999-STA-48 (ARB Apr. 25, 2000), deemed the ALJ's decision the final administrative order, and closed the case.