USDOL/OALJ Law Library
Recent Significant Decisions
Nuclear, Environmental and STAA Whistleblower Cases
October 6,
2000
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
DECISIONS
[Nuclear & Environmental Digest II B 2]
SUBJECT MATTER JURISDICTION; DOL HAS JURISDICTION TO ADJUDICATE A
COMPLAINT ALLEGING VIOLATION OF WHISTLEBLOWER PROVISION, EVEN IF
THE ULTIMATE RULING IS THAT THE COMPLAINT DID NOT SUPPORT A FINDING
OF PROTECTED ACTIVITY
In Sasse v. U.S. Department of
Justice, ARB No. 99-053, ALJ No. 1998-CAA-7 (ARB Aug. 31, 2000),
Respondent requested that the ALJ certify the question of subject matter jurisdiction as a
controlling question of law so that an interlocutory appeal could be taken the ARB. The issue, as
framed by Respondent, was "whether a federal employee alleges protected activity if he
alleges nothing more than carrying out assigned federal duties relating to the enforcement of
federal environmental law...." The ALJ certified the question. The ARB, however, ruled
that the appeal "confused the Labor Department's subject matter jurisdiction over an
environmental whistleblower complaint with the wholly separate question whether
[Complainant's] actions might be covered as 'protected activities' under the environmental
statutes. .... 'A court is said to have jurisdiction, in the sense that its erroneous action is
voidable only, not void, when the parties are properly before it, the proceeding is of a
kind or class which the court is authorized to adjudicate, and the claim set forth in the paper
writing invoking the court's action is not obviously frivolous.' West Coast Exploration Co. v.
McKay, 213 F.2d 582, 591 (D.C. Cir.), cert. denied, 347 U.S. 989 (1954)(emphasis
supplied)." Slip op. at 3 (some citations omitted).
[Nuclear & Environmental Digest VII C 1]
DISCOVERY; APPROPRIATE LIMITATIONS AT SUMMARY DECISION STAGE
In Williams v. Lockheed Martin
Corp., ARB Nos. 99-054 and 99-064, ALJ Nos. 1998-ERA-40 and 42 (ARB Sept.
29, 2000), the ARB held that the ALJ appropriately limited discovery to the specific event that
prompted Complainants' complaints -- the allegation that Respondent had tape-recorded a
meeting in violation of whistleblower laws. The ARB found that the complaints did not justify a
"wide-ranging discovery fishing expedition."
[Nuclear & Environmental Digest VII C 1]
SUMMARY JUDGMENT; FAILURE TO COME FORWARD WITH FACT IN
RESPONSE TO A SUPPORTED MOTION FOR SUMMARY DECISION
In Williams v. Lockheed Martin
Corp., ARB Nos. 99-054 and 99-064, ALJ Nos. 1998-ERA-40 and 42 (ARB Sept.
29, 2000), the ARB agreed with the ALJ's determination in ruling on a motion for summary
decision that there were no material facts in dispute where Complainants failed to come forward
with any facts in response to Respondent's well supported motion for summary decision. In
Williams, Complainants alleged that Respondent violated the whistleblower
laws when it left a tape-recorder running during an impromptu private session between
physicians who had been studying employee health concerns and Respondent's employees,
following a general public gathering. Respondent supported its motion for summary decision
with evidence that the recording was not surreptitious, and that the tape recording was only an
attempt by the company to accommodate an employee who had fallen ill. Moreover, Respondent
took no adverse action against either Complainant. On this basis, the ALJ found, and the ARB
agreed, that Respondents were entitled to summary decision as a matter of law.
[Nuclear & Environmental Digest VII D 1]
HEARING LCOATION; REQUIREMENT OF SECTION 24.6(c) THAT HEARING,
WHERE POSSIBLE, BE HELD WITHIN 75 MILES OF COMPLAINANT'S RESIDENCE
DOES NOT APPLY TO A PRE-HEARING CONFERENCE
In Williams v. Lockheed Martin
Corp., ARB Nos. 99-054 and 99-064, ALJ Nos. 1998-ERA-40 and 42 (ARB Sept.
29, 2000), the ARB ruled that 29 C.F.R. § 24.6(c), which mandates that the hearing, where
possible, be held within 75 miles of the complainant's residence, does not apply to a pre-hearing
conference requested by Complainant's counsel.
[Nuclear & Environmental Digest VIII B 1 b]
TIMELINESS OF PETITION FOR REVIEW; EQUITABLE TOLLING
In Reid v. Niagara Mohawk Power Corp., ARB No. 00-082, ALJ No.
2000-ERA-23 (ARB Sept. 26, 2000), the ARB accepted a petition for review that was received
one day late, where Complainant sent his petition via United States Postal Service Express Mail
with the expectation that the Postal Service would deliver it in time to meet the regulatory time
period. The ARB found that the late delivery was not the fault of Complainant, and that Respondent
had not been prejudiced.
[Nuclear & Environmental Digest VIII B 1 b]
TIMELINESS OF PETITION FOR REVIEW; EQUITABLE TOLLING
In Hemingway v. Northeast
Utilities, ARB No. 00-074, ALJ Nos. 1999-ERA-14 and 15 (ARB Aug. 31, 2000),
Complainant filed a motion to appeal out of time based on the arguments that he did not
comprehend the meaning of the notice of appeal rights in the ALJ's recommended decision, and
that his attorney had misled him into believing that ARB review was automatic.
The ARB found that "[t]he regulation establishing a ten-day limitations period for
filing a petition for review with the ARB is an internal procedural rule adopted to expedite the
administrative resolution of cases arising under the environmental whistleblower statutes. 29
C.F.R. §24.1. ... Because this procedural regulation does not confer important procedural
benefits upon individuals or other third parties outside the agency, it is within the ARB's
discretion, under the proper circumstances, to accept an untimely filed petition for review."
Slip op. at 3 (citations omitted). The ARB held that it is guided by principles of equitable tolling
in determining whether to relax the limitations period in a particular case. In the instant case,
however, the ARB was unwilling to depart from the principles that ignorance of legal rights does
not toll a statute of limitations, and that clients are held accountable for the acts and omissions of
their attorneys.
The ARB observed in a footnote that the regulation providing for automatic review of an
ALJ recommended decision under Part 24 had been changed more than two years prior to the
ALJ's recommended decision in this matter (the new regulations requiring an aggrieved party to
file an appeal), and that the ALJ's recommended decision had contained a statement of the proper
procedure for filing a petition for review.
[Nuclear & Environmental Digest VIII B 1 d]
MOTION FOR SUMMARY JUDGMENT FILED WITH THE SECRETARY AFTER
MATTER HAD BEEN REMANDED TO ALJ
In Ewald v. Commonwealth of
Virginia, ARB No. 00-077, ALJ No. 1989-SDW-1 (ARB Aug. 21, 2000), the
Secretary of Labor had reversed an ALJ's ruling that collateral estoppel applied to bar
Complainant's environmental whistleblower claims before DOL based on a final order reached in
an action brought by Complainant in federal district court. The Secretary found that the burden
of persuasion had been greater in the district court proceeding; therefore collateral estoppel did
not apply. The case was remanded to the ALJ for further proceedings. Subsequently,
Respondent filed a Motion for Summary Judgment with the Secretary arguing that even under the
less stringent burden of proof for the DOL proceeding, Complainant had not raised a genuine
issue of material fact.
The ARB found that the motion should have been directed to the presiding ALJ for a
recommended decision and order, citing 29 C.F.R. §24.8(a) as the only provision
providing a procedure for invoking ARB review.
[Nuclear & Environmental Digest IX M 2]
ATTORNEY MISCONDUCT; PURSUIT OF FRIVOLOUS COMPLAINT;
DEMONSTRATION OF DISRESPECT FOR THE COURTS
In Williams v. Lockheed Martin
Corp., ARB Nos. 99-054 and 99-064, ALJ Nos. 1998-ERA-40 and 42 (ARB Sept.
29, 2000), the ARB criticized Complainant's counsel for his pursuit of a frivolous complaint and
for his "personal and vitriolic attacks" on the presiding administrative law judge.
The ARB found counsel's characterizations of the ALJ's actions to be factually inaccurate and
insulting, and pointed out the professional obligation of attorneys to demonstrate respect for the
courts, citing ABA Model Rules of Professional Conduct, Preamble, Rules 3.5 and 8.2 (1999);
29 C.F.R. § 18.36.
[Nuclear & Environmental Digest XI C 2 a]
PRETEXT; CONFLICTING REASONS GIVEN FOR TRANSFER; EXTRAORDINARY
PENALTY OF SUSPENSION FOR EMPLOYEE WITH GOOD WORK HISTORY
In Jayco v. Ohio Environmental Protection Agency, 1999-CAA-5 (ALJ
Oct. 2, 2000), the ALJ found that the preponderance of the evidence showed that Respondent, the
Ohio Environmental Protection Agency (OEPA), held Complainant, a state EPA investigator, in
particular disfavor for reasons that could only be attributed to Complainant's vigorous
prosecution of an investigation to rule in or out excessive levels of contaminants as the cause of
high rates of leukemia in an area surrounding a school at Marion, Ohio. The ALJ found that
Complainant's approach was to leave "no stone unturned" while OEPA management
wanted to do something graduated and far less effective. The manifestation of this disfavor was
a transfer from the Marion investigation and a 10-day suspension.
The ALJ found that the evidence presented by Respondent to support its articulated reason
for the transfer a reorganization/realignment was conflicting, without substance, and
ultimately not credible. The ALJ found that the transfer was a deliberate retaliation for
Complainant's investigative activity. Likewise, the ALJ found that the reason given for
Complainant's suspension was pretext for retaliation. The suspension was based on alleged
violations of OEPA rules resulting from Complainant consumption of beer during a meal with
co-workers prior to a public meeting at which Complainant was to be an observer. Respondent
faulted Complainant for allegedly drinking while on duty, and for submitting a reimbursement
request that included the beer. The ALJ noted that the alleged violations were not raised until
three weeks following the meal, and held that Respondent's summary referral of a complaint of
theft to the Ohio State Highway Police without first presenting the matter to Complainant for
resolution was intended to hurt Complainant, both in the performance of his job and in his
reputation, for protected activities. Some of the circumstances noted by the ALJ were that the
amount claimed for the beer was de minimus, that Complainant's supervisor was present
during the consumption of the beer and said nothing; that the 10-day suspension was an
extraordinary penalty for a technical mistake by for an employee with a 6 1/2 year good,
discipline-free, work record.
[Nuclear & Environmental Digest XII A]
NEXUS BETWEEN PROTECTED ACTIVITY AND OBJECTIVE OR PURPOSE OF
THE ERA
In Jayco v. Ohio Environmental Protection Agency, 1999-CAA-5
(ALJ Oct. 2, 2000), the ALJ cited Van Beck v. Daniel
Construction Co., 1986-ERA-26 (Sec'y Aug. 3, 1998) at 3, for the proposition that
"in order for jurisdiction to attach under §5851, a nexus must be established between
the alleged protected activity and the objective or purpose of the ERA." The ALJ
concluded that an investigation to rule covered materials under the Atomic Energy Act
"in" or "out" as a cause of elevated levels of leukemia in an area of a
school provided sufficient nexus to be covered.
[Nuclear & Environmental Digest XII D 5]
PROTECTED ACTIVITY; INVESTIGATORY DUTIES
In Jayco v. Ohio Environmental Protection Agency, 1999-CAA-5 (ALJ
Oct. 2, 2000), when asked whether he thought Respondent Ohio Environmental Protection
Agency (OEPA) had engaged in violations of the nuclear and environmental acts, Complainant
said "no" although he believed that the spirit of the acts had been violated. This
answer complicated the question of whether Complainant, an OEPA investigator, had engaged in
protected activity when he conducted an investigation to rule in or out excessive levels of
contaminants as the cause of high rates of leukemia in an area surrounding a school.
The ALJ found that, although there was no evidence of direct environmental violations by
the OEPA, interference with or adverse action taken against an investigator because of the
investigator's promotion of extensive investigative approaches rendered the investigator actions
protected activity covered by the environmental whistleblower acts. Compare Mackowiak v.
University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984) (investigator
discharged for a "bad attitude" covered by ERA whistleblower provision).
[Nuclear & Environmental Digest XIII B 18]
ADVERSE ACTION
In Jayco v. Ohio Environmental Protection Agency, 1999-CAA-5 (ALJ
Oct. 2, 2000), the ALJ concluded that, in addition to the primary adverse actions of transfer and a
10-day suspension, Respondent engaged in other adverse employment actions, such as reacting to
news media articles and inquiries relating to Complainant's investigation on behalf of
Respondent about the cause of high rates of leukemia in an area surrounding a school in a hostile
and accusatory fashion which went beyond protected management discretion; not copying
Complainant with key memos; and deliberately shutting Complainant out of conference calls and
e-mails on subjects relating to Complainant's work.
[Nuclear & Environmental Digest XIV B 4 c]
DEFINITION OF "EMPLOYER" UNDER THE ERA
In Jayco v. Ohio Environmental Protection Agency, 1999-CAA-5
(ALJ Oct. 2, 2000), the ALJ reviewed applicable case law and statutory and regulatory history to
conclude that the term "employer" under the ERA whistleblower provision is not
clearly restricted to licensees or contractors or subcontractors of licensees of the NRC. Rather,
the ALJ concluded that "Congress meant to cover the actions of all employers and
employees who would be involved in any phase of any 'proceeding' involving the investigation
and/or potential cleanup activity of any potential nuclear waste covered by the ERA and the
Atomic Energy Act of 1954." Slip op. at 63.
[Nuclear & Environmental Digest XVI F]
EXEMPLARY DAMAGES; RESPONDENT'S REFERRAL OF ALLEGED
MEAL VOUCHER OVERCHARGE TO STATE POLICE FOR INVESTIGATION OF
THEFT
In Jayco v. Ohio Environmental Protection Agency, 1999-CAA-5 (ALJ
Oct. 2, 2000), the ALJ recommended an award of exemplary damages of $45,000 under the
CAA, TSCA and SDWA, based on his finding that Respondent referred an allegation of theft to
the state police related to a meal voucher submitted by Complainant based on an intent to harm
Complainant's investigatory function and his reputation. The ALJ earlier in the opinion found
that the dispute over the meal voucher was, at most, over a de minimus amount of money
and an innocent error by Complainant, and that the extraordinarily harsh suspension of
Complainant, who had a good work record, and referral of the matter to the state police (which
declined to investigate as the amount in dispute was less than $10) could only be explained as
retaliation for Complainant's protected activity.
[Nuclear & Environmental Digest XVII D 1]
SETTLEMENT; LACK OF ORDER TO SHOW CAUSE PRIOR TO DISMISSAL
In Balog v. Med-Safe Systems,
Inc., ARB No. 99-034, ALJ No. 1995-TSC-9 (ARB Sept. 13, 2000), Complainant
urged the ARB to find that the ALJ's approval of a settlement agreement was procedurally flawed
because he did not issue an order to show cause as required by the regulation at 29 C.F.R.
§ 24.6(e)(4)(ii) (1996), prior to dismissing the complaint. The ARB found that
Complainant's argument elevated form over substance, holding that "[w]hen both parties
are before the ALJ and jointly request dismissal an order to show cause is superfluous."
[Nuclear & Environmental Digest XVII F]
SETTLEMENT; BINDING EFFECT UNTIL FORMALLY APPROVED; MATERIAL
CHANGE IN CIRCUMSTANCES
In Balog v. Med-Safe Systems,
Inc., ARB No. 99-034, ALJ No. 1995-TSC-9 (ARB Sept. 13, 2000), the parties,
with the assistance of a DOL settlement judge, had negotiated a settlement of both
Complainant's TSCA complaint before DOL and a parallel state action. The presiding ALJ
approved the settlement and dismissed the TSCA proceeding, but failed to forward the matter to
the ARB for final action as required by the regulations then in effect until several years had
passed. On review before the ARB, Complainant sought to have the settlement agreement
repudiated. The ARB denied this request:
Settlements are favored as a matter of policy since
they resolve matters amicably without the expenditure of scarce resources. ... Holding
parties to their settlement agreement until formally approved both promotes the economy
of the process and enhances its credibility. "Employers would be less likely to enter
into settlements if they thought a complainant could withdraw from it if he changed his
mind or believed . . . he could obtain a greater relief by going to a hearing."
Macktal v. Brown & Root, Inc., Case No. 86-ERA-23, Order Rejecting in Part
and Approving in Part Settlement between the Parties, slip op. at 16 (Nov. 14, 1989),
rev'd in part and aff'd in relevant part sub nom. Macktal v. Sec'y of Labor, 923
F.2d 1150, 1157 (5th Cir. 1991) (Secretary may hold complainant and company to their
initial consent until she has had time to review the settlement).
There is some tension between the stability offered
by holding the parties to their agreement until it is reviewed and the inequity which can
occur when circumstances change before the agreement is reviewed. However, where the
circumstances have not changed materially, we ordinarily hold the parties to the terms of
their settlement agreement. ...
Moreover, [Complainant] has already elected to
treat the ALJ's approval of the Settlement of his TSCA complaint as final, e.g., he
apparently considered the ALJ's Decision and Order as satisfying his obligation to seek
dismissal of his TSCA complaint; he accepted the money Med-Safe paid under the terms
of the Settlement Agreement; and, he filed suit in state court claiming that Med-Safe had
breached the Settlement Agreement. "Normally if a party enters into a settlement
agreement knowingly and voluntarily, the agreement is treated as a binding contract and
the party is precluded from raising the underlying claims." Arnold v. U.S.,
816 F.2d 1306, 1309 (9th Cir. 1986) (citing Alexander v. Gardner-Denver Co.,
414 U.S. 36, 52 n.15 (1974)).
In this case, we do not perceive any material change
in circumstances that would justify rejecting the Settlement Agreement entered into
voluntarily by [Complainant] and [Respondent]. To the extent that [Complainant]
believes that [Respondent] has breached the Agreement, he has adequate legal remedies
available to him.
Slip op. at 6-7 (footnotes and some citations omitted). The ARB noted that, ironically,
Complainant asserted that he need not return the money he received under the settlement
agreement even while attempting to repudiate it and proceed to litigate the original TSCA claim.
[Nuclear & Environmental Digest XVII F]
SETTLEMENT; REPUDIATION BASED ON FRAUD; EFFECT OF HAVING BEEN
REPRESENTED BY COUNSEL
In Balog v. Med-Safe Systems,
Inc., ARB No. 99-034, ALJ No. 1995-TSC-9 (ARB Sept. 13, 2000), Complainant
argued that a settlement agreement could not be approved because Respondent's sole customer
did not sign the settlement agreement. The ARB rejected this argument because the customer
had not been named in Complainant's TSCA suit before DOL (the customer had been named in a
parallel state suit also subject to the settlement agreement).
Complainant's argument was that the settlement agreement was unfair because the
customer had "obtained all the benefits of being a 'released party' yet suffered no
liability." Complainant argued that the customer "deliberately avoided signing the
Settlement Agreement and thereby committed a fraud on the ARB and Complainant, and the U.S.
Department of Labor." The ARB held that "[f]raud upon the court must involve an
unconscionable plan or scheme designed to improperly influence the court in its decision. ... To
show fraud upon the court, the complaining party must establish that the alleged misconduct
affected the integrity of the judicial process, either because the court itself was defrauded or
because the misconduct was perpetrated by officers of the court." Slip op. at 8 n.8
(citations omitted). The ARB held that Complainant had not established these elements, and that
"[h]aving fully participated through counsel in the negotiations leading up to the drafting of
the Settlement Agreement and its execution, ... cannot now complain that the Agreement was
imperfectly drafted or executed." Id.
[Nuclear & Environmental Digest XVII F]
SETTLEMENT; "INADEQUACY" OF PROCEEDS
In Balog v. Med-Safe Systems,
Inc., ARB No. 99-034, ALJ No. 1995-TSC-9 (ARB Sept. 13, 2000), Complainant
sought repudiation of a settlement agreement based on the argument that, although he received a
substantial sum of money for lost wages, other damages and attorney's fees, he essentially
received nothing after expenses for an unsuccessful subsequent defamation suit based in part on
alleged breach of the settlement agreement. The ARB rejected this argument, citing Worthy
v. McKesson Corp., 756 F.2d 1370, 1373 (8th Cir. 1985), for the proposition that a party to a
voluntary settlement agreement cannot avoid the agreement simply because it ultimately proves
inadequate.
[Nuclear & Environmental Digest XVII G 9]
SETTLEMENT; FAILURE OF ALJ TO PROMPTLY FORWARD RECOMMENDED
APPROVAL OF SETTLEMENT TO ARB UNDER PRE-MARCH 11, 1998 LAW
In Balog v. Med-Safe Systems,
Inc., ARB No. 99-034, ALJ No. 1995-TSC-9 (ARB Sept. 13, 2000), the ALJ
approved a settlement agreement in April of 1996, but failed to forward the matter to the ARB
until January of 1999. Prior to March 11, 1998, all ALJ decisions under the Part 24 regulations
were automatically reviewed by the Secretary of Labor (or the ARB beginning in May 1996). On
or after March 11, 1998, ALJ decisions under the Part 24 regulations become final unless
affirmatively appealed by one or more of the parties. Because this was a pre-March 1998 order,
the ALJ should have forwarded the matter to the ARB for its automatic review.
When finally reviewed by the ARB, Complainant argued that the settlement was void and
unenforceable because the ALJ had no authority to issue a final order and did not forward his
recommended order for review by the Board. The ARB rejected this argument, finding that the
ALJ had forwarded his recommended decision, albeit not promptly.
[Editor's note: Under the regulations in effect as of the date of this casenote
(October 6, 2000), a party must petition for review in order to obtain ARB review in a case
arising under 29 C.F.R. Part 24. The OALJ and the ARB have worked out a procedure whereby
the presiding ALJ should not forward the file in nuclear and environmental whistleblower cases unless,
and until, the ARB makes a telephonic or written request for the file. ALL ALJ dispositive
orders in Part 24 proceedings are recommended (with the possible exception of a remand to
OSHA), and only become final if none of the parties seek ARB review.
The regulations for STAA whistleblower cases at 29 C.F.R. Part 1978, however, still
contemplate automatic review of ALJ decisions. Thus, ALJs should automatically forward the
file to the ARB in STAA whistleblower cases once the recommended decision is rendered. It
should be noted, however, that in STAA cases -- unlike Part 24 cases -- an ALJ's order approving
a settlement is the agency's final decision. See
Thompson v. G & W Transportation, Co., Inc., 1990-STA-25 (Sec'y Oct. 24,
1990). Similarly, in an STAA case, if the party requesting an ALJ hearing withdraws his or her
objections to the Secretary's preliminary findings or preliminary order, the ALJ's order reinstating
the preliminary findings is final, and no ARB review is required. See Creech v. Salem Carriers, Inc.,
1988-STA-29 (Sec'y Sept. 27, 1988).].
[Nuclear & Environmental Digest XVIII C 8]
FAILURE TO PROSECUTE
In Reid v. Niagara Mohawk Power Corp., ARB No. 00-082, ALJ No.
2000-ERA-23 (ALJ August 30, 2000), the OALJ docket computer did not show a record of
Complainant's case. Subseqently, Complainant presented evidence to the Associate Chief Judge
that he had filed a request for hearing by fax approximately seven years earlier. On this basis, the
Associate Chief Judge directed that the case be docketed, and assigned the case to a judge for
hearing. Respondent then filed a motion to dismiss based on Complainant's failure to
use a telegram as the regulations in effect at the time required, and based on Complainant's
failure to prosecute the claim for seven years. The ALJ conducted a hearing on the motion, and
subsequently issued a recommended decision finding that the timely filing by fax was in
substantial compliance with the regulations and therefore not a sufficient ground for dismissal of
the complaint, but that Complainant's permitting the case to lay dormant for nearly seven years
had materially prejudiced Respondent's ability to defend the case. For instance, witnesses who
had left Respondent's employ could not be compelled to attend a hearing given the lack of
authority by an ALJ to issue a subpoena in an ERA whistleblower case. The ALJ was
unpersuaded by Complainant's vague testimony that he made "on and off" attempts
over the years to inquire into the status of the case, or the argument that depression had rendered
him unable to inquire diligently into the status of his case. On this basis, the ALJ recommended
a dismissal with prejudice.
[Nuclear & Environmental Digest XVIII C 8]
DISMISSAL FOR FAILURE TO PROSECUTE
In Mastrianna v. Northeast Utilities
Corp., ARB No. 99-012, ALJ No. 1998-ERA-33 (ARB Sept. 13, 2000), the ALJ
recommended dismissal for failure to file a timely complaint under the ERA. Complainant
appealed to the ARB, but after several extensions of time and a missed teleconference by
Complainant's attorney, failed to file a brief. The ARB, analogizing to the inherent power of the
courts to dismiss a case for lack of prosecution, found that it must manage its docket in an effort
to achieve the orderly and expeditious disposition of cases. Under the circumstances, it
dismissed the appeal based on failure to prosecute the petition for review of the ALJ's
recommended decision. The ARB noted that dismissal of the petition for review rendered the
ALJ's decision the final order of the Secretary pursuant to 29 C.F.R. § 24.7(d).
[Nuclear & Environmental Digest XX E]
SOVEREIGN IMMUNITY UNDER THE TSCA
In Egbert v. U.S. Air Force,
ARB No. 99-096, ALJ No. 1999-TSC-1 (ARB Sept. 15, 2000), the ARB dismissed the U.S. Air Force for lack of
subject matter jurisdiction because Respondent, an entity of the United
States government, could not be held liable because the United States has not waived its
sovereign immunity under TSCA's employee protection provision, except for certain
whistleblower complaints involving lead-based paint.
[Nuclear & Environmental Digest XX E]
ELEVENTH AMENDMENT SOVEREIGN IMMUNITY
In State of Rhode Island, Rhode Island Dept. of Environmental Management v. United States, C.A. No. 00-044-T, 2000 WL 1448804 (D.R.I. Sept. 29, 2000), the United States District Court for the District of Rhode Island granted the State of Rhode Island's motion for a preliminary injunction barring any further "prosecution" before the Department of Labor of individual's environmental whistleblower claims involving the State of Rhode Island. The injunction was based on the Eleventh Amendment to the United States Constitution, but primarily on the doctrine of state sovereign immunity. Although the court's order bars any further proceedings before the Office of Administrative Law Judges, it did not enjoin OSHA from investigating alleged violations or seeking to enforce the State's compliance with federal law.
The court wrote that "in determining whether a proceeding is one in which a private party seeks to litigate its claim against a state or whether it is an action by the United States to enforce federal law, substance is more important than form. The determination turns on the nature of the proceeding, the relief sought and the role played by the government agency rather than on the forum in which the proceeding takes place or how the proceeding is characterized." 2000 WL 1448804 * 5. The court found persuasive, inter alia, that, at least at the ALJ stage, the cases are not investigations but adjudications; the proceedings were not initiated by investigations but by complaints filed by individuals; in the cases currently before OALJ, the Assistant Secretary investigated and found no violation; the relief sought and/or granted was almost entirely of the type awarded in a private tort action rather than an administrative enforcement proceeding; DOL was not a party or participant in the ALJ hearings -- the complainants are the prosecuting parties; DOL, through OALJ, is functioning solely as the forum; ALJ's are supposed to be impartial arbiters free from agency influence -- they do not have an investigative or prosecutorial function. The court distinguished Ellis Fischer State Cancer Hospital v. Marshall, 629 F.2d 563 (8th Cir. 1980), on the ground that the Secretary of Labor initiated the administrative proceedings in that case, whereas the complaints in the matter sub judice where brought by the individual complainants. The district court found that the court in Ellis Fischer based its 11th amendment ruling on the premise that such immunity extends only to judicial action. Moreover, the district court observed that Ellis Fisher dealt only with 11th Amendment immunity and was decided long before Supreme Court authority making it clear that sovereign immunity extends well beyond the literal language of the 11th Amendment and does not depend on the forum in which a claim is brought.
The court rejected the argument that by accepting federal funds on the condition that it abide by federal laws prohibiting discrimination, the State of Rhode Island waived immunity with respect to a private whistleblower suit. Likewise, the court rejected the argument that the State of Rhode Island's general waiver of tort immunity extended to a tort relief sought in an administrative tribunal.
[Nuclear & Environmental Digest XX E]
ELEVENTH AMENDMENT SOVEREIGN IMMUNITY
In Jayco v. Ohio Environmental Protection Agency, 1999-CAA-5
(ALJ Oct. 2, 2000), the ALJ found that the Ohio Environmental Protection Agency was not
immune based on the Eleventh Amendment from liability under the "whistleblower"
provisions covered by 29 C.F.R. Part 24, based on Ellis Fischel State Cancer Hospital v.
Marshall, 629 F.2d 563 (8th Cir. 1980, cert. denied, 450 U.S. 1040 (1981) and
Tennessee Dept. of Human Services v. U.S. Dept. of Education, 979 F.2d 1162 (6th Cir.
1992). The ALJ alternatively held that an administrative court is not the proper forum to raise
such constitutional concerns.
[STAA Digest II Q]
INTERLOCUTORY APPEAL; SCHEDULING OF LOCATION OF HEARING
In Cook v. Shaffer Trucking,
Inc., ARB No. 00-057, ALJ No. 2000-STA-17 (ARB Aug. 31, 2000), Respondent
filed an interlocutory appeal of the ALJ's order regarding venue of the hearing. The case had
originally been scheduled for hearing in Seattle, the city of Complainant's residence. Respondent
filed a motion for change of venue based on the argument that its facility was located in
Pennsylvania, it had no facilities in Washington state, and that all potential witnesses except
Complainant resided in the vicinity of Harrisburg, Pennsylvania. The ALJ granted the motion,
and the case was reassigned to the ALJ office in Camden, New Jersey. The newly assigned ALJ
scheduled a hearing for Harrisburg, but continued it based on Complainant's inability to afford
transportation to the hearing location. The ALJ informed Respondent that before the case was
rescheduled for Harrisburg, it must pay for Complainant's travel and lodging and a reasonable per
diem; otherwise, the case would be set for Seattle.
The ARB declined the interlocutory appeal, writing that it is particularly hesitant to
interfere with the ALJ's control over the time, place and course of a hearing, and citing Hasan v. Commonwealth Edison Co., ARB No.
99-097, ALJ No. 1999-ERA-17 (ARB Sept. 16, 1999).