1 This appeal was assigned to a panel of two
Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,1978 §5 (May 3, 1996).
2 Hawkins states that Vito's letter was
dated June 21, 2000. He did not indicate when he actually received it.
3 Originally, 29 C.F.R.
§24.6(b) provided that an ALJ should forward his or her recommended decision and order
automatically to the Secretary of Labor for review. On April 17, 1996, the Secretary of Labor issued
Secretary's Order 2-96, which delegated authority to issue final agency decisions under the environmental
statutes, including the ERA, to the newly created ARB. 61 Fed. Reg. 19,978 (1996).The
29 C.F.R. Part 24 regulations were amended in 1998 to provide, inter alia, for ARB review of
environmental whistleblower complaints only upon the filing of an appeal by a party aggrieved by an ALJ's
recommended decision. 63 Fed. Reg. 6614 (Feb. 9, 1998); 29 C.F.R. §24.28(a)(1999). Thus, the
regulations requiring the filing of a petition for review by a party aggrieved had been in effect for more than
two years when the ALJ in this case issued his Recommended Decision and Order. Furthermore, the
Recommended Decision, itself, contained a statement of the proper procedure for filing a petition for review.
Recommended Decision and Order at 23.
4 The Court did note, however,
"[I]f an attorney's conduct falls substantially below what is reasonable under the circumstances, the
client's remedy is against the attorney in a suit for malpractice." 370 U.S. at 634 n.10.