DATE: September 27, 1993
CASE NO. 93-CAA-4
IN THE MATTER OF
DR. WILLIAM K. REID,
COMPLAINANT,
v.
METHODIST MEDICAL CENTER OF OAK RIDGE,
TENNESSEE MEDICAL MANAGEMENT, INC.,
RALPH LILLARD,
MARSHALL WHISNANT, DR. RICHARD BRANTLEY,
MARTIN MARIETTA ENERGY SYSTEMS, INC.,
MARTIN MARIETTA CORP.,
DR. DANIEL CONRAD,
RESPONDENTS.
BEFORE: THE SECRETARY OF LABOR
ORDER
On August 20, 1993, the Office of the Solicitor, United
States Department of Labor, ("SOL") filed a motion to file a
Brief as Amicus Curiae in this case, together with a brief. For
reasons stated in an order dated August 27, 1993, that motion was
granted by the Acting Director of the Office of Administrative
Appeals (OAA). On August 31, 1993, OAA received a letter from
Counsel for Methodist Medical Center of Oak Ridge, Ralph Lillard,
Marshall Whisnant, and Dr. Richard Brantley (collectively
referred to as "the Medical Center"), stating that he was filing
an opposition to SOL's Motion, and requesting that the Department
stay the order accepting SOL's brief until the Department had an
opportunity to consider the arguments in opposition to the filing
advanced by the Medical Center and other parties. Counsel also
requested "an immediate opportunity to appear before the
Secretary or his designated representative on this matter in
[PAGE 2]
order to avoid the necessity of appealing to the judiciary in
order to afford the parties the appearance of due process if not
the fact." Letter to Gresham C. Smith from Lawrence Z. Lorber,
August 31, 1993. Also on August 31, 1993, OAA received
the Medical Center's Opposition to Motion to Accept Brief as
Amicus Curiae ("Med. Cent. Opp.") and Energy Systems Respondents'
Opposition to Solicitor's Motion to File an Amicus Curiae Brief
("Energy Syst. Opp"). On September 2, 1993, the Medical Center
filed an Emergency Petition Appealing the Decision of the Office
of Administrative Appeals to Accept Brief as Amicus Curiae
("Emerg. Pet."). Also On September 2, 1993, the Energy Systems
Respondents filed an Objection to the Order Dated August 27, 1993
("Energy Syst. Obj."). On September 3, 1993, Tennessee Medical
Management, Inc. ("TMM") filed a Motion to Set Aside Order and
Response to Motion to Accept Brief as Amicus Curiae ("TMM
Motion"). Also on September 3, 1993, SOL filed a Notice of
Filing Affidavit, attaching the Affidavit of Monica Gallagher,
Associate Solicitor of the Fair Labor Standards Division
("Gallagher Aff."). On September 7, 1993, SOL filed corrections
to two pages of its Brief. On September 10, 1993, Energy Systems
filed a Response to Gallagher Affidavit ("Energy Syst. Resp").
Thus, to date the Office of the Secretary is in possession of 55
pages of motions, memoranda, oppositions, objections, a notice
and affidavit, and a response--all to a motion by SOL to file an
amicus brief before me.
The parties opposing the filing of SOL's amicus brief argue
that: 1) Acceptance of SOL's brief would violate the
Administrative Procedure Act and due process guarantees; 2) SOL's
brief should be rejected as untimely filed; 3) SOL's brief is
redundant; 4) SOL materially misrepresented facts; 5) the Wage
and Hour Division "promised the parties that the Department of
Labor would not participate in any subsequent
administrative hearing on the matter" (Med. Cent. Opp. at 15,
emphasis in original); and 6) SOL's motion was granted before any
party had an opportunity to object. I will address the A.P.A.
and due process issues first. Because arguments 2 through 5 are
all reasons propounded why I should exercise my discretion to
deny SOL's motion to file an amicus brief I will deal with those
items under one heading. [1]
1. The Administrative Procedure Act and Due Process.
The Medical Center argues that both the Administrative
Procedure Act, 5 U.S.C. §§ 500-559, 701-706 (1982)
("A.P.A.") and fundamental fairness prohibit SOL's participation
before me in this case as Amicus Curiae. Med. Cent. Opp. at 7-
10. See also Energy Syst. Opp. at 8-10. The Medical Center
argues that fundamental fairness and the A.P.A. require that
"where an administrative agency is responsible for both
investigating
[PAGE 3]
alleged violations of law and adjudicating claims of such
violations contested by private litigants, agency officials
involved in the investigation of a case must not be involved in
the adjudication of that same case." Med. Cent. Opp. at 7.
Because SOL has been "knee deep in this case from the beginning,"
it may not now participate in its appeal. Id.
This argument demonstrates a fundamental misunderstanding of
the A.P.A., and the fundamental fairness requirements of the due
process clause of the Fifth Amendment. Section 554(d), 5 U.S.C.
§ 544(d) (1980), upon which the Respondents rely, provides
in pertinent part:
An employee or agent engaged in the performance of
investigative . . . functions for an agency in a case may
not, in that or a factually related case, participate or
advise in the decision . . . or agency review . . . .
The Medical Center Respondents do not appear to understand the
distinction implicit in this provision. Thus they argue:
Because of its participation in the investigation, it
would violate both the APA and fundamental fairness for
the Solicitor now to be permitted to take an
advocacy position in the present appeal.
Regardless of the Solicitor's eagerness to ensure that
the jurisdictional opinion it rendered during the
investigation is sustained on appeal, the Solicitor
is simply not permitted to urge that position on the
Secretary in this appeal, as the direct subordinate of
a Secretary who must perform a neutral, adjudicative
role.
. . . [T]he Office of the Solicitor knows full well
that it may not advise the Secretary on this appeal
under these circumstances. If he did not understand
that he is prohibited from doing so, why would the
Solicitor and/or his associates not simply walk down
the hall and express their views to the Secretary
. . . ?
Med. Cent. Opp. at 9, emphasis supplied.
There is no dispute that SOL attorneys participated in the
investigative stages of this case. SOL advised the Wage and Hour
Division, and corresponded with certain Respondents regarding
witness matters. However, SOL is not attempting to "participate
or advise in the . . . agency review" of this case within the
meaning of the A.P.A. SOL seeks to participate as an
advocate, albeit in the role of amicus. [2] The filing
of a brief as amicus curiae is precisely the role that the A.P.A.
and due process principles of fundamental fairness would embrace
under these circumstances, because it is not behind-the-scenes
advice. Rather, it is open and equal participation in the
adjudicatory
[PAGE 4]
process. Filing a brief before an administrative
adjudicator is not the same as "advising" the adjudicator.
Presumably it is precisely because SOL did not think it
appropriate to "walk down the hall and express their views to the
Secretary" that they filed a brief and served it on all parties
to the case.
There is a critical difference for A.P.A. and due process
purposes between acting as an advisor (such as a law clerk) to an
adjudicator and acting as an arms-length participant in an
adjudicatory process, either as a party or an amicus. The Fifth
Circuit Court of Appeals has noted that "the participation of the
staff attorney in both the investigation and subsequent
prosecution of a case is clearly allowed under 5 U.S.C. §
554(d)" Gibson v. F.T.C., 682 F.2d 554, 560 (1982),
rehearing denied, 688 F.2d 840 (5th Cir. 1982), cert.
denied, 460 U.S. 1068 (1983). "Prosecution," of course, includes
the writing and filing of briefs. Similarly, the Court in
Greenberg v. Bd. of Gov. of Federal Reserve System, 968
F.2d 164 (2d Cir. 1992), has stated that, "[t]he APA is violated
only where an individual actually participates in a single case
as both a prosecutor and an adjudicator" (emphasis
supplied). [3] Indeed under some circumstances, even
commingling of investigative and adjudicatory functions has
received approval of the Supreme Court:
It is . . . very typical for the members of
administrative agencies to receive the results of
investigations, to approve the filing of charges or
formal complaints instituting enforcement proceedings,
and then to participate in the ensuing hearings. This
mode of procedure does not violate the Administrative
Procedure Act, and it does not violate due process of
law.
Withrow v. Larkin, 421 U.S. 35, 56 (1975).
Underlying Respondents' argument on this issue is an
implication that members of SOL and other officials of the
Department of Labor cannot be trusted to carry out their
respective responsibilities when different agencies of the
Department engage in different roles in the same case. This
assumption flies in the face of what Justice White, writing for
the Court in Withrow, called "a presumption of honesty and
integrity" on the part of public servants. Withrow v.
Larkin, 421 U.S. at 47. As the D.C. Circuit noted in
Blinder, Robinson & Co., Inc. v. S.E.C., 837 F.2d 1099,
1106 n.7 (1988), cert. denied, 488 U.S. 869 (1988), one of the
fundamental premises of the administrative state "is that
institutions may competently perform diverse functions.
At the agency level, our law assumes integrity in individual
members, and requires direct evidence of bias, or some other
personal interest, to overcome that
[PAGE 5]
assumption" (emphasis in original).
Counsel for the Medical Center apparently believe that the
participation of SOL in a case which is before the Secretary on
appeal is novel. On the contrary, such participation occurs
often, and under many different statutes. Thus, for example, SOL
has filed briefs before the Secretary in cases brought by private
parties under various whistleblower statutes. See,e.g.Palazzolo v. PST Vans, Inc., Case No. 92-STA-
23, Dec. and Ord., March 10, 1993; Smith v. Littenberg,
Case No. 92-ERA-52, Dec. and Remand Ord., June 30, 1993, Slip op.
at 5-6; McKinney v. Tennessee Valley Authority, Case No.
92-ERA-22, Ord. Inviting Brfs., June 10, 1992. Similarly, SOL
participates before the Secretary in cases arising under
Executive Order 11,246, 3 C.F.R. 339 (1964-1965), reprinted as
amended in 42 U.S.C. § 2000e note (1988); child labor
provisions of the Fair Labor Stndards Act of 1938, as Amended
(FLSA), 29 U.S.C. §§ 212 and 216(e) (1988); the
Comprehensive Employment and Training Act (CETA), 29 U.S.C.
§§ 801-999 (Supp. V 1981) (repealed, October 12,
1981); and the Job Training Partnership Act, 29 U.S.C.
§§ 1501-1791 (1988). [4] For all of these reasons I
reject Respondents' argument that the A.P.A. or principles of
fundamental fairness prohibit the participation of SOL as amicus
in this appeal before me. On the contrary, this type of
participation is precisely in line with A.P.A. and due process
requirements.
2. Whether SOL's Motion to File an Amicus
Brief Should Be Denied as a Matter of
Discretion.
Respondents urge me to reject SOL's brief for several
reasons. Respondents argue that SOL's brief should be rejected
because it was not filed within the time set in the Briefing
Order issued in this case. That order, dated April 14, 1993,
stated that "parties may file briefs . . . in support of or in
opposition to the ALJ's Recommended Order within 30 days of
receipt of this order." It is uncontroverted that SOL sought to
file its Amicus Brief on August 20, 1993, about three months
after the time allowed parties to file briefs.
SOL argues that it has the right to file an amicus brief
without seeking leave, citing 29 C.F.R. § 18.12. SOL Motion
at 1. Section 18.12, which is part of the "Rules of Practice and
Procedure for Administrative Hearings Before the Office of
Administrative Law Judges," 29 C.F.R. Part 18, provides in
pertinent part:
A brief of an amicus curiae may be filed only with
the written consent of all parties, or by leave of the
administrative law judge granted upon motion, or on the
request of the administrative law judge, except that
consent or leave shall not be required when the brief
is presented by an officer of an agency of the United
[PAGE 6]
States . . . .
Energy Systems argues (Energy Syst. Opp. at 5), that these rules
do not apply to appeals before the Secretary of Labor. [5]
However, the Secretary of Labor previously has held that 29
C.F.R. § 18.12 does apply to such appeals. Aurich v.
Consolidated Edison Company of New York, Inc., Case No. 86-
CAA-2, Remand Ord., April 23, 1987, slip op. at 2.
SOL also cites Rule 29, F. R. App. P. to support its
proposition that it may file an amicus brief without leave in
this case. Although it is sensible to look to Rule 29 for
guidance on issues relating to the filing of amicus briefs, that
rule is not of significant help to SOL's argument here. Rule 29
provides that government officials may file amicus briefs without
leave of court. However, the Rule requires leave to file an
amicus brief outside the time "allowed the party whose position
as to affirmance or reversal the amicus brief will support
. . . ." Thus, Rule 29 would appear to require leave to file out
of time.In any event, as I will discuss more fully, the
issue whether SOL may file an amicus brief under these
circumstances without leave being granted need not be decided
here.
Assuming for the purposes of this case that SOL must seek
and be granted leave in order to file its amicus brief, I will
address the arguments advanced by the various Respondents in
opposition to SOL's motion. [6] It is undeniable that, whether
SOL thought it needed to or not, it did seek leave to file
its amicus brief. Various Respondents argue that the brief
should be rejected because it was untimely filed, is redundant,
SOL materially misrepresented facts, and the Wage and Hour
Division "promised" the parties that the Department of Labor
would not participate in any subsequent administrative hearing on
the matter.
First, the question whether to grant a motion to file an
amicus brief is a matter for the discretion of the adjudicator.
SeeAlexander v. Hall, 64 F.R.D. 152, 155 (D. S.C.
1974). Although the Office of Administrative Appeals had set 30
days from the receipt of the April 14, 1993 briefing order as the
date for filing of initial briefs and reply briefs 20 days after
that, the parties prolonged their disputes regarding briefing
until June 25, 1993, when I acted on various pending motions,
oppositions, and filings. Thus, the case was still quite fresh
when SOL filed its motion on August 20, 1993. In light of the 55
pages of paper that have been filed since that date, the merits
of the case are still far from being decided. Thus, no harm
whatsoever will come as a result of SOL's late filed brief. In
any event, it is the Complainant who may be injured by any delay
resulting from SOL's late filed brief, and the Complainant has
not been heard to object. Second, the Medical Center argues that
[PAGE 7]
SOL's brief is redundant. Of course I cannot judge whether it is
or is not until such time as I have evaluated all of the briefs.
However, even assuming that it is, there is no harm (other than
the sheer bulk of it all) to having a redundant brief in the
record. If redundancy were to be used as a rigid criteria for
filings before federal agencies, the government's need for filing
cabinets would decrease markedly.
Third, several parties argue the SOL seriously
misrepresented facts regarding its knowledge of the pendency of
this case. The Medical Center argues that such
misrepresentations amount to ethical violations which warrant
sanction: specifically the denial of SOL's motion to file its
amicus brief. The SOL attorney assigned to this case asserts
that he did not know about it until after the date for filing
original briefs had passed. See SOL Motion at 1-2. The
fact that the Associate Solicitor for Fair Labor Standards was
routinely served with documents relevant to this case does not
call the attorney's assertion into question. I take
administrative notice of the fact that the Fair Labor Standards
Division of the Office of the Solicitor of Labor has jurisdiction
over approximately 100 statutes. The fact that the head of the
office may have heard of a case, while the staff attorney
ultimately assigned to handle an amicus brief on appeal has not,
does not seem in the least peculiar. As the Supreme Court has
said, there is a "presumption of honesty and integrity" on the
part of those who serve in office. Withrow v. Larkin, 421
U.S. at 47. The Respondents have presented nothing which would
lead me to reject that presumption in this case. In any event,
we are not talking here about whether a vital piece of evidence
was ill-gotten, or whether a witness was suborned to perjure him-
or herself. We are talking about whether I should accept for
filing an amicus brief (which one Respondent says is redundant in
any case). Whether or not any person has misrepresented facts
regarding who knew what when about the case (and I have no reason
to believe that anyone has), the quality of the ideas contained
in the brief must stand on their own, must be evaluated on their
own merits. Amicus briefs are to be welcomed because "it is for
the honor of a court of justice to avoid error." The
Protector v. Geering, 145 Eng. Rep. 326 (K.B. 1686), cited in
Krislov, The Amicus Curiae Brief: From Friendship to
Advocacy, 72 Yale L.J. 694, 695 n.5 (1963).
The Medical Center argues that SOL should not be allowed to
file a brief as amicus curiae because the Wage and Hour Division
"promised the parties that the Department of Labor would
not participate in any subsequent administrative hearing
on the matter." Med Cent. Opp. at 15 (emphasis in original). In
support of this proposition, the Medical Center cites the letter
[PAGE 8]
which Wage and Hour District Director George Friday sent to the
parties on December 18, 1992. The purpose of that letter was to
notify the parties of the result of Wage and Hour's investigation
into Dr. Reid's complaints. The District Director concluded in
pertinent part that: 1) an employment relationship existed
between Methodist Medical Center of Oak Ridge and Tennessee
Medical Management and Dr. Reid for purposes of the employee
protection provisions at issue in the case; 2) Dr. Reid engaged
in protected activities within the meaning of the Safe Drinking
Water Act, 42 U.S.C. § 300j-9 (1988), and the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
§ 9610 (1988); and 3) Dr. Reid was not discriminated against
because of his protected activity. Friday Letter, December 18,
1992, at 1-2. The letter then contains two paragraphs of
boilerplate language. One explains the appeal process. The
other, which is the one upon which the Medical Center relies,
states in full:
It should be made clear to all parties that the U.S.
Department of Labor does not represent any of the
parties in a hearing. The hearing is an adversarial
proceeding in which the parties will be allowed an
opportunity to present their evidence for the records
[sic]. The Administrative Law Judge who conducts the
hearing will issue a recommended decision to the
Secretary based on the evidence, testimony and
arguments presented by the parties at the hearing. The
Final Order of the Secretary will then be issued after
consideration of the Administrative Law Judge's
recommended decision and the record developed at the
hearing and will either provide for appropriate relief
or dismiss the complaint.
Id. at 2. The statement which the Medical Center argues
is a promise not to participate is contained in the first
sentence of the paragraph. It is abundantly clear to me that the
purpose of that sentence was to warn all parties, and in
particular the Complainant, that they would need to seek their
own counsel should they choose to appeal the case to an ALJ.
There is not even an intimation that the "Department of Labor"
was promising not to participate as opposed to
represent.
The Medical Center's argument in this regard also flies in
the face of logic. As SOL has pointed out, the Department of
Labor has been given the responsibility of enforcing and
administering the various employee protection provisions
contained in several environmental statutes. SOL Motion at 2.
See 29 C.F.R. Part 24. The Secretary of Labor often is
Respondent in appeals from adverse decisions in these cases. The
Wage and Hour Division, and its attorneys in SOL therefore have a
[PAGE 9]
legitimate interest in the types of jurisdictional issues which
are at the heart of this appeal. There is no reason why the
views of those chosen by Congress to investigate and enforce
these provisions should be excluded from consideration when
presented in a brief before the Secretary.
One final note is in order. Thus far this appeal can be
generously characterized as acrimonious. Several documents filed
have crossed over the line between civility and rancor. I would
therefore remind the parties that "[t]he adversary process in the
judicial arena does not require attorneys to be clothed in a suit
of armor and fight to the bitter end. The parties, the
profession, and the public all lose when the attorneys fail to
treat each other with common courtesy." Miller v.
Bittner, 985 F. 2d 935, 941 (8th Cir. 1993). See
also, In re Snyder, 472 U.S. 634, 647 (1985),
Harlan v. Lewis, 982 F.2d 1255, 1257 (8th Cir. 1993),
McLeod, Alexander, Powel & Apffel P.C. v. Quarles, 894
F.2d 1482, 1487 n.3 (5th Cir. 1990).
For the forgoing reasons, I reconsider the order issued by
the Acting Director of Administrative Appeal dated August 27,
1993, and after reviewing all of the documents filed relative to
this issue I GRANT the motion of the Office of the Solicitor to
file a brief amicus curiae. The parties have 20 days from the
date of this order to file briefs not to exceed 20 pages in
length in reply to SOL's brief. [7]
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Argument 6 is addressed at p. 10 n.6.
[2] The roles of advocate and amicus are not incompatible, as
is illustrated by Rule 29, F. R. App. P., which clearly
contemplates that amici may support one side or another in any
given case.
[3] F.T.C. v. Atlantic Richfield Co., 567 F.2d 96
(D.C. Cir. 1977), cited both by the Medical Center and Energy
Systems in support of their argument, is inapposite. Atlantic
Richfield, involved the question whether the General Counsel
of the F.T.C. could use evidence gained in the course of an
investigative proceeding in an entirely separate enforcement
proceeding against one of the companies which had been the
subject of the investigative proceeding. Here we have one
proceeding, and the question involves the extent to, and manner
in, which SOL may participate at the various stages of that
proceeding.
[4] Energy Systems' citation to Wilderness Society v.
Morton, 479 F.2d 842, 864-65 (D.C. Cir. 1973), cert. denied,
411 U.S. 917 (1973), in this regard is nonsensical. The fact
that SOL commonly participates in cases before the Secretary does
not constitute "out-of-bounds agency practice" (Energy Syst.
Resp. at 4)--it constitutes absolutely standard administrative
practice in conformance with the A.P.A. and due process
guarantees.
[5] I note that Respondents Medical Center and TMM cite to the
rules contained in Part 18 in support of various other arguments.
See Med. Cent. Opp. at 13 and TMM Motion at 1-2.
[6] Because I have taken the opportunity presented by the
Respondents to reconsider OAA's order granting SOL's motion for
leave to file a brief amicus curiae, the objections raised by
various Respondents to the original granting of that motion are
moot. Thus, I will not consider whether the August 27, 1993 order
violated "the most basic principles of due process" (Emerg. Pet.
at 3; See also Energy Syst. Obj. at 2), and whether the
order of August 27, 1993, was premature. TMM Motion at 1.
[7] Pleadings are expected to conform to the page limitations
and should be prepared in Courier 12 point, 10 character-per-inch
type or larger, with minimum one inch left and right margins and
minimum 1.25 inch top and bottom margins, printed on 8 1/2 by 11
paper. This requirement is necessary because some parties have
attempted to evade the page limits of previous briefing
schedules.
