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 & 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).