U.S. Department of Labor Office of Administrative Law Judges
Federal Building, Suite 4300
501 W. Ocean Boulevard
Long Beach, California 90802
(562) 980-3594
(562) 980-3596
FAX: (562) 980-3597
DATE: January 28, 1999
CASE NO: 1998-ERA-37
In the Matter of
MARK GRAF,
Complainant,
v.
WACKENHUT SERVICES LLC,
Respondent.
ORDER GRANTING MOTION TO QUASH
SUBPOENA
This case arises under the Energy Reorganization Act of 1974, as
amended, 42 U.S.C. § 5851 (the "ERA" or "Act"), and the
regulations promulgated thereunder at 29 C.F.R. Part 24. On January 11, 1999, Jeffrey B. Peters
filed a motion to quash the subpoena served on him by Wackenhut Services LLC
("Respondent"). Mr. Peters is not a party to this action and is not an employee of
Respondent.
[Page 2]
Title 29 of the Code of Federal Regulations sets forth Rules of Practice and
Procedure which are generally applicable in administrative hearings before the Office of
Administrative Law Judges. See 29 C.F.R. Part 18. While Section 18.24 grants
administrative law judges the power to issue subpoenas, it is first necessary to look to the
controlling statute in the particular adjudicatory proceeding to determine whether such authority
is granted therein. See 29 C.F.R. § 18.24; Malpass v. General Elec.
Co., 1994 WL 897244 at *9, 85-ERA-38/39 (Sec'y Mar. 1, 1994).
In Malpass, the Secretary of Labor noted that the Administrative
Procedures Act permits administrative law judges to "issue subpoenas authorized by
law," but that the ERA contains no such authorization. Id. The Secretary stated
that an administrative law judge "has no power under the ERA to issue subpoena or to
punish contempt for failure to comply with a subpoena." Id. For the foregoing
reasons, Mr. Peters' motion must be granted.
Nonetheless, the Secretary's ruling does not preclude Mr. Peters from
voluntarily being deposed. Therefore, I suggest Mr. Peters consider voluntarily participating in a
deposition by Respondent in this matter.
ORDER
Accordingly, and based on the above, it is ORDERED that Mr.
Peters' motion to quash the subpoena served on him by Respondent be GRANTED.
Entered this 28th day of January, 1999, at Long Beach, California.
