In Hasan v. USDOL, No. 05-099 (7th Cir. Dec. 10, 2008) (unpublished) (case below ARB No. 05-099, ALJ No. 2002-ERA-32), the Seventh Circuit agreed with the ARB that issue preclusion prevented the Complainant from pursuing a claim of unlawful rejection of his job application where in a previous complaint, the ALJ had found that the Respondent had legitimate and nondiscriminatory reasons for not hiring the Complainant and for concluding that it would never hire him, the ARB had agreed with that recommendation, and the Seventh Circuit had denied the Complainant's petition for review. See Hasan v. USDOL, 400 F.3d 1001 (7th Cir. 2005). The court found that the issue of whether the Respondent could refuse to hire the Complainant for every job he applied for had been fully litigated by the parties and resolved. The Complainant was no longer entitled to contest this issue.
[Nuclear and Environment Digest XXI A]
COLLATERAL ESTOPPEL APPLIES IN ADMINISTRATIVE ADJUDICATION
Collateral estoppel applies in administrative adjudication. Thus, in Muino v. Florida Power & Light Co., ARB Nos. 06-092 and 06-143, ALJ Nos. 2006-ERA-2 and 8 (ARB Apr. 2, 2008), the ARB found that collateral estoppel precluded the Complainant's second complaint (which he had filed based on information he alleged he first learned about during his deposition on the first complaint), where the issue of whether the Respondent had taken adverse action against the Complainant because of his safety complaints was the same in both complaints, and the issue had been fully and fairly litigated and decided both before the ALJ and the ARB in the first complaint.
XXI A Res judicata
In Howard v. Tennessee Valley Authority, 91-ERA-36
(ALJ June 13, 1991), the administrative law judge recommended
dismissal of the complaint based on res judicata, the same
issues having been raised in the prior decision of an
administrative law judge in case number 90-ERA-24. See Howard
v. Tennessee Valley Authority, 90-ERA-24 (ALJ Sept. 4, 1990),
aff'd, (Sec'y July 3, 1991), aff'd,Howard v.
United States Dep't of Labor, 959 F.2d 234 (6th Cir.
1992).
[Nuclear and Environmental Digest XXI A] COLLATERAL ESTOPPEL; REFUSAL TO
HIRE; APPLICATION FOR SAME JOB DURING APPEAL OF FIRST CASE
In Hasan v. Sargent & Lundy, ARB No. 05-99, ALJ No. 2002-ERA-32 (ARB Aug. 31, 2007), the
Complainant had filed an earlier whistleblower complaint grounded in a refusal
to hire theory. The ALJ in the earlier case found that the Complainant failed
to establish the requisite element of such a complaint of being qualified for
the offered position. Moreover the ALJ in the earlier case found that the
Respondent legitimately refused to hire the Complainant for any position.
Before the ALJ had issued a decision in the first case, the Complainant sent another job application to
the Respondent and then filed a new ERA whistleblower complaint. The ALJ in
the second case continued the matter until the appeals in the first case were
completed. Those appeals resulted in affirmance of the first ALJ’s decision.
The second ALJ therefore recommended dismissal based on collateral estoppel.
The ARB agreed. The ARB rejected the Complainant’s argument that he was
applying for different jobs, and therefore different issues were being
litigated. The ARB found that record established that in both cases the
Complainant was applying for engineering jobs and that the issues were
identical, or at worst, substantially the same.
In Farver v. The Lockheed Martin Corp., 2000 ERA 29, 2001 ERA 17 (ALJ Apr. 9, 2003), Complainant alleged a variety of adverse employment actions, referencing all prior adverse employment actions as explored in previous whistleblower claims, in addition to the written reprimand and termination underlying the instant complaint. The ALJ in his recommended decision applied principles of collateral estoppel to find that only the more recent reprimand and termination would be considered. The ALJ wrote in regard to the earlier adjudications: "Those complaints are identical to Complainant's prior suit, and they have been finally determined. Complainant cannot bootstrap her former allegations to the instant case. While Complainant is entitled to present her entire history of protected activity, she cannot claim certain conduct of LMES was retaliatory after it has been adjudicated to the contrary and not appealed."
[Nuclear & Environmental Digest XXI A]
ISSUE PRECLUSION; CANNOT BE APPLIED WHERE ALJ'S FIRST RECOMMENDED
DECISION IS STILL UNDER REVIEW BY THE ARB
In Agosto v. Consolidated Edison Co. of New
York, Inc., ARB Nos. 98-007 and 98-152, ALJ Nos. 1996-ERA-2 and
1997-ERA-54 (ARB July 27, 1999), Complainant's first complaint alleged, inter alia, that he
was retaliated against by the entry into his file of poor performance evaluations after his layoff from an
outage. The ALJ, after 13 days of hearings, concluded in his recommended decision that the poor
performance evaluations were reasonable evaluations of Complainant's performance and were not
retaliatory. Subsequently, Complainant filed a second complaint alleging that he was retaliated against
when he was not selected for work for an outage. Upon docketing with OALJ, the case was assigned
to the same ALJ; the first case was still pending review by the ARB during the ALJ's handling of the
second case. Respondent alleged that the poor performance evaluations were the reason for the
Complainant not being rehired.
The ALJ reasoned that collateral estoppel (or issue preclusion) applied to question of whether
the performance evaluations were retaliatory, and therefore did not permit Complainant to relitigate this
issue. He did permit, however, Complainant to attempt to prove that the performance evaluations were
not the basis for the decision not to rehire.
The ARB consolidated the two cases for decision. In reviewing the ALJ's decision on the first
case, the ARB found that the ALJ had correctly concluded that the performance evaluations were not
retaliatory. In regard to the second case, however, the ARB held that the ALJ erred in characterizing
the limitation on the Complainant's presentation of evidence and cross-examination on the performance
evaluation issue as being grounded in collateral estoppel. Use of issue preclusion was in error because
the ALJ's first decision was a recommended decision, subject to de novo review by
the ARB, and therefore, "relevant issues" had not been "decided in the prior
proceeding." The ARB observed in a footnote, however, that
The ALJ might have invoked Section 18.403 of the Rules of Practice and Procedure of
the Department of Labor's Administrative Law Judges to exclude evidence in Agosto
II regarding the facts underlying the performance evaluations. That section provides in
pertinent part that "evidence may be excluded if its probative value is substantially
outweighed by the danger of confusion of issues, or misleading the judge as trier of fact, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence." 29 C.F.R. §18.403.
The ARB concluded that the ALJ's error was harmless given that it had, in the first part of the
decision, affirmed the ALJ's finding that the evaluations were not retaliatory.
[Nuclear & Environmental Digest XXI A]
COLLATERAL ESTOPPEL NOT AVAILABLE WHERE PRIOR ALJ DECISION IS
PENDING ARB REVIEW
In Parker v. Stone & Webster, 2000-ERA-2 (ALJ Dec. 22, 1999), the
ALJ found that Complainant's complaint raised the same allegations and materials submitted in
support thereof that were made in a previous case against another Respondent. For some reason,
the complaint against different Respondents had been bifurcated by OSHA, investigated
separately, referred to OALJ separately, and assigned at different times to different ALJs. The
first case had been dismissed on summary judgment by the other ALJ, and the ALJ in the present
proceeding issued an order to show cause why Respondent's motion to dismiss based on the
findings in the earlier suit that the safety concerns (about a request for fire fighting equipment
and asbestos concerns) raised by Complainant were not covered by the ERA (although they
might be covered by other laws).
The ALJ found that collateral estoppel could not apply because the first ALJ's
recommended decision was still pending on review by the ARB, and therefore there is, as yet, no
final decision in that first matter. The ALJ, however, concluded that because Complainant had
not responded to Respondent's motion for summary judgment in the present proceeding, he could
draw an inference that there are no new allegations or evidence which would connect
Complainant's concerns with that of nuclear safety or otherwise differentiate his complaint
against the other Respondent. Thus, the ALJ concurring with the ALJ's assessment of the earlier
case, Parker v. TVA, 1999-ERA-13 (ALJ July 30, 1999), granted Respondent's motion
for summary judgment.
[Nuclear & Environmental Digest XXI A]
COLLATERAL ESTOPPEL; PRIOR RULINGS RELATING TO SAME ORIGINAL
COMPLAINT
In Rockefeller v. Carlsbad Area Office,
U.S. Dept. of Energy, 1999-CAA-4 (ALJ Mar. 10, 1999), the ALJ found that
collateral estoppel is applicable in administrative adjudications, and found that Complainant's
third complaint, was collaterally estopped by prior administrative adjudications of his first,
second, and fourth complaints. In applying the test for application of collateral estoppel, the ALJ
first found that the issues were identical. Although Complainant had alleged a new fact -- the
existence of a DOE Office of Hearings and Appeals determination relating his claim that a
denial of a FOIA fee waiver was retaliatory -- the ALJ held that merely alleging a new fact does
not constitute a new and distinct cause of action. Second, the ALJ found that the issues had been
actually litigated -- that is, contested by the parties and submitted for determination by the court
[each of the prior decisions had been summary decisions]. Finally, the ALJ found that the
determination of the issues had been a critical and necessary part of the earlier judgments. Thus,
the ALJ concluded that collateral estoppel applied. He went on to find, in the alternative, that the
complaint failed to prove essential elements of whistleblower causes of action.
RES JUDICATA; PRIOR SUIT DISMISSED UNDER RULE 41(b) FOR
FAILURE TO COMPLY WITH ALJ'S PREHEARING ORDERS
[N/E Digest XXI A]
The law of res judicata is applicable to administrative
proceedings when an agency is acting in a judicial capacity.
Under the doctrine of res judicata, a judgment on the merits in a
prior suit bars a second suit involving the same parties based on
the same cause of action. The judgment precludes the parties
from relitigating issues that were or could have been raised in
that action.
In Billings v.
Tennessee Valley Authority, 91-ERA-12 (ARB June 26,
1996), the ALJ had issued prior decisions on complaints that
raised the same issues vis-a-vis the Respondents named in
the present proceeding. The Board held that even though the
substance of these issues was not specifically litigated in the
prior cases, the ALJ's recommended decision and order therein
constituted a judgment on the merits for res judicata
purposes. The ALJ's recommended decision and order was issued
pursuant to Fed. R. Civ. P. 41(b) for failure to comply with the
ALJ's prehearing orders, was subsequently affirmed by the
Secretary, and the courts of appeals denied review.
The Board held that a dismissal order issued under Rule 41(b)
operates as an adjudication on the merits unless the dismissal
order specifies otherwise, and therefore the instant action was
barred by the doctrine of res judicata. The Board noted
that it was irrelevant under Rule 41(b) that the ALJ's orders in
the earlier proceeding were issued sua sponte.
RES JUDICATA
[N/E Digest XXI A]
Where issues relating to salary increases were litigated and
decided in the proceeding relating to Complainant's original
complaint (which had later been consolidated with two other
complaint proceedings on review before the Secretary of Labor and
the Administrative Review Board), the ALJ in a subsequent
complaint properly concluded that the salary increase issue was
res judicata.Varnadore v. Oak Ridge National
Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3,
slip op. at 52-53 (ARB June 14, 1996).
XXI A Reapplying for job; getting rejected; and using
new rejection to resurrect time barred
complaint
In Greenwald v. The City of North Miami Beach, 78-
SDW-1 (Sec'y Apr. 3, 1978), the Secretary adopted the ALJ's
decision that the 30 day time limitation for filing a complaint
under section 1450(i) of the Safe Drinking Water Act, 42 U.S.C.
§ 300j-9(i), was not tolled or suspended while the
Complainant appealed his discharge to the Civil Service Board of
the Respondent -- a city government -- since the SDWA provided a
legally independent procedure which was equally available to him.
This decision was sustained by the Fifth Circuit. Greenwald
v. North Miami Beach, 587 F.2d 779 (5th Cir. 1979), cert.
denied, 44 U.S. 826 (1979).
[Editor's note: Greenwald tried an end around this problem by
reapplying for employment and then filed a complaint alleging
continuing discrimination. The ALJ and the Secretary saw this as
attempt to litigate issues that had previously been found time
barred, and as an attempt to create a requisite employment
relationship (i.e., this was an "applicant" rather than
an "employee"). Greenwald v. The City of North
Miami Beach, 80-SDW-2 (Sec'y Apr. 14, 1980).]
XXI A ALJ decision still pending before
Secretary
In Coupar v. Federal Bureau of Prisons, 92-TSC-12
(ALJ May 13, 1994), the ALJ held that the principles of res
judicata and collateral estoppel do not apply to the prior
decisions of ALJs when the Secretary had not yet issued a final
order.
XXI A Prior ALJ proceeding
In Coupar v. Federal Prison Industries/Unicor, 92-
TSC-6 and 8 (ALJ June 11, 1992), Complainant had filed two
previous DOL complaints that another ALJ had recommended be
dismissed on the ground that Complainant, a federal prison
inmate, was not an employee within the meaning of the TSCA or the
CAA. The ALJ in the instant proceeding held that the prior
judgment was not res judicata because it was a recommended
decision and not a final order. The ALJ also held that
collateral estoppel (or issue preclusion) was not applicable
because, being a recommended decision, it was "avowedly
tentative". See Luben Industries, Inc. v. United
States, 707 F.2d 1037 (9th Cir. 1983) (issue preclusion
"should be refused if the decision was avowedly
tentative" (quoting Restatement (Second) of Judgments §
13 comment g (1982)).
The application of issue preclusion was recommended by the ALJ in
Ewald v. Commonwealth of
Virginia, 89-SDW-1 (Sec'y Apr. 20, 1995). In
rejecting
the ALJ's recommendation, the
Secretary noted that issue preclusion may be invoked in
administrative adjudications if:
the issue sought to be precluded "must have been
actually litigated, that is, contested by
the parties and submitted for determination to the court . .
. ."
the issue sought to be precluded "must have been
'actually and necessarily determined by
a court of competent jurisdiction' in the first trial".
Preclusion "in the second trial must not work an
unfairness."
Slip op. at 7, citing and quoting Otherson v. DOL, 711
F.2d 267, 273 (D.C. Cir. 1983) (Secretary
omitted citations from Otherson). The Secretary added
that an exception to application of issue
preclusion is that a party should not be precluded from
litigating an issue in a second case where the
burden of persuasion on the issue was greater in the first case.
In Ewald, the Complainant had simultaneously
pursued her DOL ERA complaint and an
action in Federal court alleging that her termination violated
here constitutional rights of freedom of
speech and association. The Federal district court ruled that
Complainant's constitutional complaints
could not be upheld because her speech did not meet the
"but-for" standard of Huang v.
Bd. of Governors of the Univ. of N.C., 902 F.2d 1134, 1140
(4th Cir. 1990) -- the complainant must
show that "but for" the protected expression the
employer would not have taken the alleged
retaliatory action. Ewald v. Commonwealth of Virginia Dept.
of Waste Management, CA-90-494-
R (E.D. Va. Apr. 22, 1991) (available at 1991 U.S. Dist. LEXIS
15828). The Fourth Circuit Court of
Appeals affirmed the District Court's ruling. Ewald v. Dept.
of Waste Management, No. 91-1583
(4th Cir. July 22, 1992) (table case at 972 F.2d 339; unpublished
decision available at 1992 U.S. App.
LEXIS 16863).
The Secretary concluded that the burden of persuasion imposed by
Huang is markedly different
from those routinely applied by the Secretary in environmental
whistleblower cases, which prohibit an
employer from retaliating against an employee "by reason
of" or "because of" the
fact that the employee has engaged in protected activity. In
order to prevail, a complaint in an
environmental whistleblower proceeding need prove by a
preponderance of the evidence only that
retaliatory motive played a part in the employer's decision to
take adverse action against the employee.
The complainant does not need to prove that "but for"
the retaliatory motive he or she would
not have suffered the adverse action. Thus, the district court's
finding did not have preclusive effect.
[Nuclear and Environmental Whistleblower Digest XXI B]
CLAIM PRECLUSION; FEDERAL COURT JUDGMENT IN STATE COMMON LAW WHISTLEBLOWER COMPLAINT
Since the Complainant could not have litigated his ERA whistleblower complaint along with his state common law whistleblower complaint in federal court, a federal court judgment in the state claim did not not bar the DOL proceeding. McNeill v. Crane Nuclear Inc., ARB No. 02-002, ALJ No. 2001-ERA-3 (ARB July 29, 2005).
[Nuclear and Environmental Whistleblower Digest XXI B]
RES JUDICATA; REFERENCE TO FOURTH CIRCUIT STANDARDS
In Erickson v. U.S. Environmental Protection Agency, ARB No. 99-095, ALJ No. 1999-CAA-2 (ARB July 31, 2001), the ARB remanded the case to the ALJ finding that the ALJ had improperly granted summary decision to Respondent on timeliness issues. Respondent had also raised the assertion that Complainant was precluded from litigating her claim before DOL because she had previously litigated the same issues in other forums. The ALJ had not addressed this issue. The ARB directed on remand that the ALJ address this as a factual issue and consider the facts under the standards in Sedlack v. Braswell Servs. Group, Inc., 134 F.3d 219, 224 (4th Cir. 1998).
[Nuclear & Environmental Digest XXI B]
COLLATERAL ESTOPPEL; WHETHER OTHER ACTION CAN BE CONSIDERED
PERSUASIVE AUTHORITY IF COLLATERAL ESTOPPEL DOES NOT APPLY
In Reid v. Scientech, Inc., 1999-ERA-20 (ALJ Jan. 28, 2000),
Respondent conceded that collateral estoppel did not apply to a state Industrial Commission
decision in which a finding was made that unemployment benefits would be denied to
Complainant because of insubordination. Respondent, however, asserted that the state
commission's finding should be considered persuasive authority. The ALJ declined to afford the
state commission's finding the status of persuasive authority because Complainant was not
represented by counsel at the state hearing; the appeals examiner did not explore all of the
relevant facts in the case and prevented Complainant from asking several important questions
during cross-examination and from answering questions during direct examination; the hearing
was conducted via telephone which prevented credibility assessments; and finally, the
commission's decision is still on appeal in the state court system.
[Nuclear & Environmental Digest XXI B]
RES JUDICATA/COLLATERAL ESTOPPEL; ARBITRATION PROCEEDING
In Paynes v. Gulf States Utilities
Co., ARB No. 98-045, ALJ No. 1993-ERA-47 (ARB Aug. 31, 1999), the ARB
noted that the law of res judicata is applicable to administrative proceedings when an agency
is acting in a judicial capacity. The Board, however, agreed with the ALJ that claim preclusion was not
applicable where a prior arbitration proceeding concerning Complainant's transfer to a lower paying job
was grounded in contract law and did not involve the ERA Section 211 complaint before the DOL --
and that issue preclusion was not applicable where the issue of Complainant's job performance was not
fully and vigorously litigated in the arbitration proceeding, and the main issue in that proceeding was
decided as a matter of contract law.
[Nuclear and Environmental Digest XXI B]
ISSUE PRECLUSION; SUMMARY JUDGMENT
In Ruud v. Westinghouse Hanford Co., 1988-ERA-33 (ALJ Dec. 8,
1998), Respondent asserted that the ALJ should apply issue preclusion because a Washington
State Superior Court granted Respondent's motion for summary judgment and dismissed
Complainant's claims (one of which was wrongful discharge) before that court. The ALJ found
that issue preclusion did not apply because the Superior Court judge gave no explanation for the
grounds or reasoning underlying his decision and made no findings of fact. The ALJ also found
that issue preclusion did not apply because it was not readily apparent that the standards of proof
were the same for the state claims and the federal claims before the ALJ.
[N/E Digest XXI B]
ARBITRATION PROCEEDING; RES JUDICATA CLAIM AND ISSUE
PRECLUSION
In Paynes v. Gulf States Utilities Co., 93-ERA-7 (ALJ Dec. 3, 1997),
Respondent contended that Complainant's ERA complaint was barred by res judicata based on an
arbitration proceeding in which Complainant's transfer to a tool room was litigated. The
Arbitrator had determined that Respondent's transfer of Complainant to the tool room was invalid
as a matter of contract law, but that Complainant's performance was so unsatisfactory as to
require a disciplinary demotion to the lowest position with the department. The ALJ reviewed
the law of both claim preclusion and issue preclusion, and determined that the arbitration
proceeding had no res judicata effect. Claim preclusion was not applicable because Complainant
could not have successfully have raised his ERA Section 211 complaint in the arbitration
proceeding which was grounded in a breach of contract claim. SeeRestatement
(Second) of Judgments, § 26. Issue preclusion was not applicable because the issue of
whether Complainant's actual job performance was not fully and vigorously litigated in the
arbitration proceedings, and because the main issue in the arbitration proceeding of the transfer
was decided on contract law. See Parklane Hosiery Co. v. Shore, 439 U.S. 322
(1979)(four-part standard for applicable of issue preclusion).
XXI.B. Collateral estoppel; state disciplinary
proceeding
In Sawyers v. Baldwin Union Free School District,
85-TSC-1 (Sec'y Oct. 24, 1994), the Secretary considered whether
the finding of a state disciplinary panel that the Complainant
was guilty of misconduct was binding in the TSC proceeding
pursuant to res judicata or collateral estoppel.
Res judicata, or claim preclusion, provides that "a final
judgment on the mertis of an action precludes the parties or
their privies from relitigating issues that were or could have
been raised in that [first] action." Kremer v. Chemical
Constr. Corp., 456 U.S. 461, 467 n.6 (1982). Res judicata
does not apply where "'[t]he plaintiff was unable to rely on
a certain theory of the case or to seek a certain remedy because
of the limitations on the subject matter jurisdiction of the
courts.'" Marrese v. American Academy of Orthopaedic
Surgeons, 470 U.S. 373, 382 (1985) (citation omitted);
Owens v. New York City Housing Authority, 934 F.2d 405,
410 (2d Cir. 19xx), cert. denied, 112 S.Ct. 431 (1991).
Collateral estoppel, or issue preclusion, prevents the
relitigation of issues that were actually decided by a court and
necessary to its decision if the parties had a full and fair
opportunity to litigate them. Kremer, 456 U.S. at 467
n.6, 480-481; Owens, 934 F.2d at 409.
Courts have applied the doctrines of res judicata and collateral
estoppel to administrative decisions where the agency was acting
in a judicial capacity and resolved disputed issues of fact that
were properly before it. See, e.g., University of Tennessee
v. Elliott, 478 U.S. 788, 799 (1986).
In the instant proceeding, the Secretary determined that it was
appropriate to apply collateral estoppel to the issue of
misconduct (tampering with an air quality machine) that was
decided by the state hearing panel acting in a judicial capacity,
which had the authority to decide. The Secretary noted that the
hearing was judicial in nature, and afforded opportunity to
introduce and object to evidence, and to cross examine witnesses.
Further, both the Complainant and the School District were
represented by counsel.
XXI B Collateral estoppel; MSPB decision
In Davis v. Tennessee Valley Authority, 90-ERA-61
(ALJ Oct. 25, 1991), the ALJ held that collateral estoppel was
applicable where the same issue was involved in a hearing before
the Merit Systems Protection Board, the issue was fully litigated
before the MSPB, the issue was a critical and necessary part of
the that proceeding, Complainant was represented by counsel
during the entire period of litigation before the MSPB. The ALJ
relied on N.L.R.B. v. Master Slack and/or Master Trousers
Corp., 773 F.2d 77 (6th Cir. 1985), in which the four
essential elements of collateral estoppel were described as
follows:
the issue precluded must be the same one involved in
the prior proceeding;
the issue must actually have been litigated in the
prior proceeding;
determination of the issue must have been a critical
and necessary part of the decision in the prior
proceeding; and
the prior forum must have provided the party against
whom estoppel is asserted a full and fair opportunity
to litigate the issue.
773 F.2d at 881.
[Editor's note: check Master Slack cite -- there seems to
be something wrong with the page number.]
XXI B Res judicata effect of state judgment
In Kosciuk v. Consumers Power Co., 90-ERA-56 (ALJ
Jan. 9, 1992), the complainant, subsequent to filing her ERA
complaint with the Department of Labor, filed a state court
action grounded, in part, on a charge of wrongful discharge-
violation of public policy. Specifically, that count alleged in
pertinent part: "Because of the Plaintiff's investigation
in ferreting out actual and suspected Palisades Power Plant and
federal violations, [the complainant] was intimidated, harassed,
restrained, coerced and eventually discharged . . . ." She
requested the following relief in state court:
"unconditional reinstatement as Senior Engineer and a
judgment in the amount of $10,000 for compensatory, punitive or
exemplary damages together with costs, interest, and attorney
fees." The state case was submitted to mediation, and both
parties eventually accepted the mediation's evaluation. The
trial judge entered judgment for the Plaintiff and ordered that
upon payment of the mediation award, "this case is hereby
dismissed with prejudice." On the same day, counsel for the
Plaintiff signed a Satisfaction of Judgment. The respondent
subsequently moved for summary judgment or dismissal of the ERA
complaint contending that the state court judgment and dismissal
with prejudice is entitled to full faith and credit and triggers
the doctrine of res judicata.
The ALJ held that 28 U.S.C. § 1738 requires federal courts
to give effect to a state judgment to the extent the state would
give its own prior judgment such effect. Under the law of the
state involved, Michigan, the doctrine of res judicata bars a
litigant from relitigating a claim when:
the former action was decided on the merits;
the matter contested in the second action was or could
have been decided in the first; and
the two actions are between the same parties or their
privies.
The ALJ found that the parties were the same; the claims in both
forums arose from the same core of operative facts; that under
Michigan rules, a settlement reached by mediation is in the
nature of a consent judgment and that res judicata applies to
consent judgments. Hence, he found that the state judgment was
entitled to full faith and credit and permits the defense of res
judicata.
XXI B Collateral estoppel based on First Amendment
whistleblower claim
In Ewald v. Commonwealth of Virginia, 89-SDW-2 (ALJ
Oct. 19, 1992), the ALJ applied the doctrine of collateral
estoppel to find that the decision of a federal district court,
affirmed by the federal court of appeals, barred the Complainant
from relitigating critical issues in her Department of Labor
complaint. In Ewald, the Complainant had filed a
concurrent complaint in U.S. District Court alleging violation of
her constitutional rights of free speech and due process. The
district court found that there was "no material dispute
that [the Complainant's assertedly protected speech] was not the
"but for" cause of the discharge." In affirming
the district court, the Court of Appeals reflected on the test
which must be satisfied to prevail on a First Amendment
whistleblower claim, and concluded that the plaintiff must
establish that "but for" the protected expression, the
employer would not have taken the alleged retaliatory action.
The ALJ concluded that the evaluation employed by both the
district court and the court of appeals is also a pivotal element
in the evaluation of whistleblower litigation by the Secretary of
Labor, whether viewed as a mixed motive or pretext case.
The ALJ then considered whether collateral estoppel precluded the
Complainant from relitigating the cause of her discharge in the
context of the DOL proceedings. Citing Stein, Mitchell, and
Mezines, Administrative Law (Matthew Bender 1977), Chisholm v.
Defense Logistics Agency, 656 F.2d 42 (3rd Cir. 1981), and
Nissi Corp., __-SCA-1233 (1990), he concluded that the
collateral estoppel is applicable in administrative proceedings,
and that the test to be applied is from Montana v. United States,
440 U.S. 147 (1979):
Is the issue identical to that actually decided by
the other agency?
Was the issue necessary to the earlier judgment,
and
Did the party against whom preclusion would operate
have a full and fair opportunity to litigate the issue?
XXI B MSPB decision afforded res judicata
weight
In McKinney v. Tennessee Valley Authority, 92-ERA-
22 (ALJ Mar. 17, 1992), the ALJ afforded res judicata effect to
the findings of a MSPB decision, see Thompson v. United
States Dept. of Labor, 885 F.2d 551 (9th Cir. 1989);
Ray v. Tennessee Valley Authority, 677 F.2d
818 (11th Cir. 1982), cert. denied, 495 U.S.
1147 (1983), and granted summary judgment based on the
Complainant's violation of 42 U.S.C. § 5851(g), which
precludes whistleblower protection for any employee who, acting
without direction from his or her employer deliberately causes a
violation of any requirement of the Atomic Energy Act. The
Respondent presented a MSPB decision that the Complainant
violated the Atomic Energy Act when he affirmatively disabled two
airtight doors to an airlock which was the passageway between a
drywell housing a nuclear reactor and the outside. This action
violated the requirement that primary containment integrity be
maintained at all times when the reactor is critical or when the
reactor water temperature is above 212 degrees fahrenheit and
fuel is in the reactor vessel.
XXI B Claim preclusion/issue preclusion
In Kosciuk v. Consumers Power Co., 90-ERA-56 (Sec'y
Mar. 31, 1994), Complainant filed concurrent ERA section 210 and
state law actions concerning her raising of safety concerns about
practices at a power plant. The state court action was submitted
to state-sponsored mediation, and the parties subsequently
accepted the mediation panel's evaluation. Subsequently, a
judgment was entered in Complainant's favor. The Secretary
disagreed with the ALJ's recommendation that the section 210
complaint is precluded by res judicata.
The Secretary concluded that the section 210 complaint was not
barred by claim preclusion "because Complainant could not
successfully have raised her ERA Section 210 complaint in the
State court action," slip op. at 4-5, and therefore comes
within the exception claim preclusion when the "plaintiff
was unable to rely on a certain theory of the case or to seek a
certain remedy or form of relief in the first action because of
the limitations on the subject matter jurisdiction of the courts
. . . ." Slip op. at 3, quoting Restatement (Second) of
Judgments, § 26(1)(c). The Secretary noted that the section
210 issue is reserved for the DOL, and that injunctive relief and
compensation were not routinely available in a State court action
for retaliatory discharge. (Complainant's state court award was
limited to monetary damages for breach of contract)
The section 210 complaint was not barred by issue preclusion or
collateral estoppel because the record did not disclose which, if
any, issues had been "litigated" as the result of the
mediation. Slip op. at 5, citing Restatement (Second) of
Judgments, § 27 at 250 (1982).
[Nuclear & Environmental Digest XXI C]
LAW OF THE CASE DOCTRINE APPLIES TO ADMINISTRATIVE ADJUDICATIONS
In Stephenson v. NASA, ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB
July 18, 2000), the ARB found that the law of the case doctrine applies to
adjudications within administrative agencies. Thus, when the ARB "has ruled on a
question of law, the law of the case doctrine binds an administrative law judge acting after a
remand of the case."
[Nuclear & Environmental Digest XXI C]
LAW OF THE CASE; DISTINCTION BETWEEN STATING A CLAIM UNDER THE
CAA, AND FINDING OF PROTECTED ACTIVITY UNDER THE CAA
See casenote of Stephenson v. NASA, ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB July 18, 2000), supra, under Nuclear & Environmental Digest VII C 3.
[Nuclear & Environmental Whistleblower Digest XXI C]
LAW OF THE CASE; ARB MAY RECONSIDER ORDERS; PREJUDICE TO PARTY AGAINST WHOM RECONSIDERATION DISAVANTAGES RELATES TO NOTICE OF THE INTENT TO RECONSIDER, NOT TO HARM RESULTING FROM CORRECTION OF EARLIER RULING
In Willy v. The Coastal Corp., ARB No. 97-107, ALJ No. 1985-CAA-1 (ARB Feb. 27, 2004), the ARB held that the "law of the case doctrine" did not prevent it from reconsidering prior DOL orders, including a decision of a prior Secretary of Labor, where necessary to correct clear error, and a manifest injustice, before issuing a final decision of the DOL. The ARB observed that it had previously reconsidered and reversed its prior ruling in other cases. The Board also observed that a final decision had not yet been issued in the case, that a Texas court judgment very similar to the issue to be reconsidered by the ARB was a significant intervening event, and, as discussed elsewhere in the decision, the original ruling was erroneous. The Board held that its decision not to adhere to a prior ruling did not prejudice the Complainant within the meaning of the law of the case doctrine prejudice in this context does not mean harm resulting from the failure to adhere to the prior decision, but rather lack of sufficient notice that the prior ruling is not deemed controlling. Since the Complainant was notified in ARB briefing notices that the ARB would be reconsidering the issue, there was no prejudice.
[Nuclear & Environmental Whistleblower Digest XXI C] LAW OF THE CASE; EXCEPTIONAL CIRCUMSTANCES STANDARD
In White v. The Osage Tribal Council, ARB No. 00-078, ALJ No. 1995-SDW-1 (ARB Apr. 8, 2003), the ARB applied an "exceptional circumstances"standard to determine that it would not deviate from the doctrine of law of the case to reconsider findings it made in a prior remand decision in the case. The ARB cited in this regard Huffman v. Saul Holdings Ltd. Partnership, 262 F.2d 1128, 1133 (10th Cir. 2001), for the proposition that exceptional circumstances supporting deviation from law of the case doctrine include "(1) a dramatic change in controlling legal authority; (2) significant new evidence that was not earlier obtainable through due diligence but has since come to light; or (3) if blatant error from the prior . . . decision would result in serious injustice if uncorrected." White, slip op. at 2, quoting Huffman, supra.
[Nuclear & Environmental Whistleblower Digest XXI C]
LAW OF THE CASE AS A DISCRETIONARY DOCTRINE
In Ruud v. Westinghouse Hanford Co., ARB Nos. 99-023, 99-028, ALJ No. 1988-ERA-33 (ARB Apr. 18, 2002), the ARB held that it was "not bound by the 'law of the case' doctrine, which is discretionary and does not limit our power to reconsider our decision prior to final judgment if we determine that our earlier ruling was erroneous." (Citations omitted). In Ruud, the ARB decided to reverse its earlier rejection of a settlement agreement.
[Nuclear & Environmental Digest XXI C]
LAW OF THE CASE; DOES NOT APPLY WHERE THERE IS INTERVENING, CONTROLLING AUTHORITY
In Macktal v. Brown & Root, Inc., ARB No. 98-112, ALJ No. 1986-ERA-23 (ARB Jan. 9, 2001), the ARB had remanded the case for a recommended decision on attorneys fees on Complainant's successful challenge to a settlement agreement, even though after the settlement agreement had been voided, a hearing on the merits resulted in dismissal of the complaint. Prior to reviewing the ALJ's recommended decision on fees and costs, the ARB issued an intervening, controlling decision in Harris v. Tennessee Valley Authority, ARB No. 99-004, ALJ Nos. 1997-ERA-26 and 50 (ARB Nov. 29, 2000), which held that fees and costs are not available under the statute in a no-fault settlement. Harris is essentially based on the lack of an order by the Secretary finding discrimination the order is a statutory prerequisite to an award of fees and costs. Similarly, in Macktal, there was no order finding discrimination in the circumstances surrounding the settlement agreement, and therefore a statutory prerequisite to an award of fees and costs was missing.
The ARB observed that the "law of the case" doctrine did not preclude it from revisiting the attorney's fee issue where there has been an intervening change in the law. The ARB wrote that the law of the case doctrine
...is a prudential rather than a jurisdictional restriction on a court's authority to reconsider an issue. See Messenger v. Anderson, 225 U.S. 436, 44, 32 S.Ct. 739 (1912). "When intervening legal authority makes clear that a prior decision bears qualification, that decision must yield." Women's Equity Action League v. Cavazos, 906 F.2d 742, 751 (D.C. Cir. 1990). See also, Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 738-41 (D.C. Cir. 1995).
Slip op. at 6 n.7.
[Nuclear & Environmental Digest XXI C]
STARE DECISIS; DEPARTURE APPROPRIATE IF EARLIER RULING DOES NOT WITHSTAND SCRUTINY
In Childers v. Carolina Power & Light. Co., ARB No. 98-077, ALJ No. 1997-ERA-32 (ARB Dec. 29, 2000), the ARB reversed authority to the effect that ALJs do not have the authority to issue subpoenas in whistleblower cases because of the absence of express statutory authority. In regard to the principle of stare decisis, the Board wrote:
Adherence to decisional law promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. "Adhering to precedent is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right." Burnet v. Coronado Oil & Gas Co., 258 U.S. 393, 406, 52 S.Ct. 443, 447 (1932) (Brandeis, J., dissenting). At the same time, however, stare decisis is not an inexorable command; rather, it "is a principle of policy and not a mechanical formula of adherence to the latest decision." Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451 (1940). "[W]hen governing decisions are unworkable or are badly reasoned, [the Supreme Court] has never felt constrained to follow precedent.'" Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609 (1991) (internal citation omitted). The reasons for reversing an earlier ruling are always sui generis, but if a useful generalization can be made, it is that "[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved. The opposite is true in cases . . . involving procedural and evidentiary rules." Payne, 501 U.S. at 828, 111 S.Ct. at 2610 (internal citations omitted); cf. Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 276, 114 S.Ct. 2251, 2257 (1994) (renouncing earlier conclusion concerning meaning of APA phrase "burden of proof" because first analysis was "cursory" and did not "withstand[] scrutiny").