USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION VIII -- POWER, RESPONSIBILITIES AND JURISDICTION OF ALJ, SECRETARY, FEDERAL COURTS

Administrative hearings in whistleblower cases brought under the Energy Reorganization Act entitle a party to a hearing de novo. Thus, all the charges raised by the Complainant are at issue and not just the specific issue raised in the notice of appeal.

VIII A 1 Both complainant and respondent entitled to de novo hearing

In Smith v. Littenberg, 92-ERA-52 (Sec'y June 30, 1993), the Secretary interpreted the regulation at 20 C.F.R. § 24.4(d)(2) and (3) to permit either a complainant or a respondent aggrieved by the determination of the Wage and Hour Administrator to a de novo hearing before an administrative law judge. To reach this interpretation, the Secretary found that a "literal reading of the regulation would lead to the absurd result of penalizing the complainant for an error on the part of the Wage and Hour Administrator." The Secretary stated that

It would undermine the remedial purpose of the ERA to deny a complainant the right to seek a hearing in cases in which the decision of the District Director does not consider [the complainant's] request for the full relief the statute provides.

In Smith, the Administrator found that the Complainant was entitled to relief, but did not order reinstatement or a notice remedy recommended by the Complainant. The Secretary found that the Respondent waived its right to a hearing on the issue of liability when it did not make a timely request for a hearing, so on remand, the ALJ's hearing was limited to the issue of remedies.

VIII A 1 Wage & Hour finding not binding on ALJ

The Wage and Hour Division's finding of timeliness of a whistleblower complaint is not binding on the ALJ or the Secretary. An appeal of the Wage and Hour determination entitles the parties to a de novo consideration of the case and all extant issues. Mosbaugh v. Georgia Power Co., 90-ERA-58 (Sec'y Sept. 23, 1992), slip op. at 3-4. See Eisner v. U.S. Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), slip op. at n.6.

VIII A 1 De novo review by ALJ

A finding by Wage & Hour that a complaint is timely is not binding. A respondent's appeal entitles the parties to a de novo consideration of the case and all extant issues. Eisner v. United States Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992).

VIII A 1 ALJ's limitation of recommendation to issue investigated by Wage and Hour Division

In Merritt v. Mishawaka Municipal Utilities, the City of Mishawaka, 93-SDW-3 (ALJ Dec. 9, 1993), the Wage and Hour Division found that Complainant's complaint was not timely and did not further investigate. The ALJ found that the complaint was timely, and recommended that the Secretary so find. The ALJ recommended that the Wage and Hour Division immediately commence an investigation of the merits of the complaint while the Secretary is reviewing the Recommended Decision.

VIII A 1 De novo hearing

The hearing before the administrative law judge in an Energy Reorganization Act whistleblower case is de novo. Smith v. Tennessee Valley Auth., 87-ERA-20 (Sec'y Apr. 27, 1990).

VIII A 2 a Recommended D & O

Under the regulations implementing the ERA, administrative law judges issue recommended decisions. 29 C.F.R. § 24.6(a). Jain v. Sacramento Mun. Util. Dist., 89-ERA-39 (Sec'y Nov. 21, 1991).

[Nuclear & Environmental Whistleblower Digest VIII A 2]
SUMMARY JUDGMENT; COURT'S DELAY OF DISCOVERY PENDING RULING ON MOTION

"Rule 56, Fed. R. Civ. P., upon which 29 C.F.R. § 18.40 is modeled, permits a court discretion to delay discovery pending a ruling on a motion for summary judgment in the event that the party against whom judgment is sought fails to alert the court that discovery would aid in overcoming the summary judgment motion." Pickett v. Tennessee Valley Authority, ARB No. 00 076, ALJ No. 2000 CAA 9 (ARB Apr. 23, 2003) (citations omitted).

[Nuclear & Environmental Whistleblower Digest VIII A 2 c]
ALJ DECISION; FINDINGS MUST EXPLAIN RESOLUTION OF CONFLICTS

"The ERA requires that Secretarial decisions "be made on the record after notice and opportunity for public hearing." 42 U.S.C. §5851(b)(2)(A). Pursuant to the Administrative Procedure Act, decisions on the record must provide the 'findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law or discretion presented on the record . . . .' 5 U.S.C. §557(c)(3)(A) (1994); see Lockert v. U.S. Dep't of Labor, 867 F.2d 513, 517 (9th Cir. 1989) (holding that Secretary's ERA decision was adequate under §557(c)(3)(A), because the evidentiary basis for the decision was clearly specified and thus did not require speculation by the court); 29 C.F.R. §18.57(b) (summarizing contents required in ALJ decisions). Consistent with the mandate of Section 557(c)(3)(A), the ALJ's findings of fact must provide an explanation for the resolution of conflicts in the evidence and must reflect proper consideration of evidence that could support contrary findings." Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002) (some citations omitted).

[Nuclear & Environmental Digest VIII A 2 a]
INTERLOCUTORY APPEAL; TIMELINESS ISSUE

In Amato v. Assured Transportation & Delivery, Inc., ARB No. 98-167, ALJ No. 1998-TSC-6 (ARB Jan. 31, 2000), the ALJ issued a ruling finding that equitable tolling rendered Complainant's complaint timely, and styled the ruling "Recommended Decision and Order." Respondent petitioned the ARB to review the ALJ's decision on the timeliness of the complaint.

The ARB, in denying the petition as a disfavored interlocutory appeal, held

Although the ALJ styled his ruling as a Recommended Decision and Order, it is instead an interlocutory ruling because it did not resolve the merits of the dispute before him. Assured's petition for review, therefore, is actually an interlocutory appeal of the ALJ's resolution of the timeliness issue....
This case presents a classic example of why we disfavor interlocutory appeals. ... [Once t]he ALJ found that the 30-day period to file a complaint was not jurisdictional and that the period was equitably tolled[, he] should have ordered the parties to proceed to the merits of the case. Instead, he issued an interlocutory ruling which Assured appealed to this Board. By taking this circuitous route, rather than deciding the merits of the complaint, the process of adjudicating Amato's case has been delayed needlessly.

Slip op. at 2 (citations and footnote omitted).

[N/E Digest VIII A 2 a]
ADMINISTRATIVE APPEAL; SETTLEMENTS

New 29 C.F.R. § 28.7(d) provides that "[t]he recommended decision of the administrative law judge shall become the final order of the Secretary unless, pursuant to § 24.8, a petition for review is timely filed with the Administrative Review Board."

Under traditional administrative practice, such an ALJ decision would normally be titled an "initial" decision, but the regulations still refer to "recommended" ALJ decisions. See 2 Am Jur 2d, Administrative Law § 365 (1994) (ALJ's decision is "initial" where it can become final if no appeal is taken; ALJ's decision is "recommended" where it is automatically reviewed by agency decision maker).

The probable major implication of the requirement that parties petition for review is that settlements are unlikely to be reviewed by the ARB. This places increased importance on the ALJ to ensure that the agreement is "fair, adequate and reasonable." See generally Ruud v. Westinghouse Hanford Co., 88-ERA-33 (ARB Nov. 10, 1997)(decision reiterating responsibility of Secretary of Labor to review settlements). The OALJ Web Site contains guidance on review of settlements at the Nuclear and Environment Digest at XVII, and the memoranda entitled "When Submission to DOL Is Required & When ALJ's Decision Is Final or Recommended" and "Disclosure of Dollar Amount of Payments and Attorneys' Fees; Possible Side Agreements.".

The regulatory amendments also provide at section 24.6(f)(1), that the Assistant Secretary has the discretion, at any time in the proceeding to participate as a party or amicus curiae. This provision includes the right to petition for review of an ALJ's recommended decision, "based on a settlement agreement between complainant and respondent, to dismiss a complaint or to issue an order encompassing the terms of the settlement." Thus, it may be appropriate for the ALJ to notify the Solicitor representing the Assistant Secretary of the existence of any settlement proffered by the complainant and respondent, and provide an opportunity for the Assistant Secretary to voice any reservations about the agreement prior to issuing a recommended decision approving or rejecting such settlement.

RECOMMENDED DECISIONS SUBJECT TO PLENARY REVIEW
[N/E Digest VIII A 2 a]

ALJ recommended decisions under the environmental whistleblower provisions are subject to plenary review by the Secretary of Labor or his or her delegatee. In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA- 1 and 94-CAA-2 and 3, slip op. at 54 (ARB June 14, 1996).

VIII A 2 a Finding that equitable tolling is invoked is not a decision on the merits; hence, ALJ's remand order is not recommended

In Odom v. Anchor Lithkemko/International Paper, 95-WPC-2 (ALJ Apr. 28, 1995), the ALJ found that the Complainant was told by DOL officials that he had no right to file a complaint because he did not report his alleged environmental safety concerns other than to the Respondent, and that he could file a complaint with the EEOC. The ALJ found that the period for filing was equitably tolled as a result, and remanded the case to the Wage and Hour Division for an investigation. The parties agreed that a remand was appropriate if the ALJ found in favor of the Complainant regarding equitable tolling. The ALJ concluded that his order was not dispositive on the merits, and being interlocutory in nature, was not subject to transmittal to the Secretary for a final order pursuant to 29 C.F.R. § 24.6.

VIII A 2 a Recommended decision

Under 29 C.F.R. § 24.6 an ALJ is authorized to issue only a recommended decision, which must be reviewed by the Secretary before it becomes final. See Cooper v. Bechtel Power Corp., 88-ERA-2 (Sept. 29, 1989). Hendrix v. Duke Power Co., 90-ERA-32 (Sec'y Sept. 25, 1990).

To the same effect: Burchfield v. Tennessee Valley Authority, 90-ERA-45 and 92-ERA-11 (Sec'y Mar. 13, 1992) (citing Avery v. B & W Commercial Nuclear Fuel Plant, 91-ERA-8 (Sec'y Oct. 21, 1991); Bryant v. Ebasco Services, Inc., 88-ERA-31 (Sec'y July 9, 1990).

VIII A 2 a ALJ issues recommended decision

An ALJ is authorized to issue only a recommended decision which must be reviewed by the Secretary before it becomes final. See 29 C.F.R. § 24.6. Keelan v. Consolidated Edison Co. of New York, Inc., 88-CAA-3 (Sec'y Sept. 29, 1989); Passanisi v. Consolidated Edison Co. of New York, Inc., 88-CAA-4 (Sec'y Sept. 29, 1989); Cornish v. Consolidated Edison Co. of New York, Inc., 88-CAA-5 (Sec'y Sept. 29, 1989).

VIII A 2 a ALJ issues recommended decisions except in limited circumstances

Except in limited circumstances, see 29 C.F.R. § 24.5(e)(4), an ALJ's decision is only a recommended decision. Final orders are issued by the Secretary. 29 C.F.R. § 24.6. Cowan v. Bechtel Construction, Inc., 87-ERA-29 (Sec'y Aug. 9, 1989).

VIII A 2 a Recommended D & O

Under the regulations implementing the ERA, administrative law judges issue recommended decisions. 29 C.F.R. § 24.6(a). Jain v. Sacramento Mun. Util. Dist., 89-ERA-39 (Sec'y Nov. 21, 1991).

VIII A 2 b Obligation of ALJ to provide citations to the record

Bartlik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y June 24, 1992)

[Editor's note: This is not a casenote, but a follow up on the Editor's note to the earlier Bartlik casenote at II.G.5. In his Final Decision & Order, the Secretary did not directly comment on the ALJ's footnote in the remand decision explaining that courts normally do not provide citations to testimony and documents and that it is not possible to provide citations to the record if an ALJ attempts to comply with the direction of 29 CFR § 24.6 to render a recommended decision within 20 days after the termination of the proceedings because the transcript is normally not received within this time frame.

Nevertheless, it appears that the Secretary rejected the ALJ's footnote commentary on the appropriateness of citations to the record given that the first paragraph of his decision details the reason for the earlier remand, and that the Secretary examined the transcript and exhibits very closely, resulting the rejection of many of the ALJ's conclusions.

There is no ambiguity to the Secretary's position. The ALJ must support findings of fact with a specific reference to the record.]

[Nuclear and Environmental Whistleblower Digest VIII A 2 b]
RECORD CITATIONS; NEED FOR ALJ TO CITE PORTIONS OF THE RECORD THAT SUPPORT HIS FINDINGS OF FACT ESPECIALLY CRITICAL IN A COMPLICATED CASE

In Hall v. United States Army Dugway Proving Ground, ARB Nos. 02-108 and 03-013, ALJ No. 1997-SDW-5 (ARB Dec. 30, 2004), most of the ALJ findings of fact did not identify which parts of he record upon which he relied, making review by the Board exceedingly difficult because the trial had lasted 56 days and involved more than 50 witnesses testifying about evidentiary issues spanning a 10 year period. The Board wrote: "Record citations are always essential, both to the ALJ to confine his thinking to the actual record and not to vague recollections, and to the Board, so it may know precisely the basis for the ALJ's fact findings. In a case as complicated as this, those necessities are only magnified."

VIII A 2 b Obligation of ALJ to provide citations to the record

In Bartlik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y Dec. 6, 1991), the Secretary remanded the case to the administrative law judge to revise his recommended decision and order specifically addressing several evidentiary questions "and supporting his inferences and conclusions with explicit references to the record." Slip op. at 17. The Secretary noted that the ALJ's recommended decision and order contained no explicit record references at all. Slip op. at 5.

[Editor's note: In his revised decision, the ALJ stated that his initial decision had been based on notes made contemporaneous with the hearing. He noted that

Trial courts (and many administrative tribunals) generally do not provide citations to testimony or documents in decisions because findings usually state ultimate facts, not the evidence. See Mining Co. v. Taylor, 100 U.S. 37; Miller v. Life Ins. Co., 79 U.S. 285; Wilson v. Merchant's Loan & Trust Co., 183 U.S. 121; Grayson v. Lynch, 163 U.S. 468; Fanning v. Murphy, 126 Wis. 538, 105 N.W. 1056. In fact, in many courts, testimony is not even transcribed unless an appeal is taken. The implementing regulations at 29 C.F.R. §24.6 require that the administrative law judge "issue a recommended decision within 20 days after the termination of the proceedings at which evidence was submitted." Normally, transcript is not received within this time frame.

Bartlik v. Tennessee Valley Authority, 88-ERA-15 (ALJ June 24, 1992), slip op. at 3 and n.2.]

VIII A 2 c Adoption of portions of a brief

In Bailey v. System Energy Resources, Inc., 89-ERA- 31, 32 (Sec'y July 16, 1993), the ALJ acknowledged that many of his findings of fact and some of his conclusions of law were adopted verbatim from Respondent's post-hearing brief. The Secretary stated that while wholesale copying of a pleading may be indicative of an abdication of the judicial function, it was clear that in this instance the ALJ carefully considered the adopted material, elaborating upon it where necessary and adding a significant amount of his own material. Consequently, the Secretary concluded that the ALJ faithfully discharged his judicial duty. See S. Pac. Communications v. A.T. & T., 740 F.2d 980, 995 (D.C. Cir. 1984).

[Nuclear & Environmental Digest VIII A 2 c]
OBLIGATION TO RESOLVE PERTINENT CONFLICTS IN EVIDENCE

An ALJ errs when he or she fails to resolve pertinent conflicts in the evidence. Consistent with the mandate of Section 557(c)(3)(A) of the APA, the ALJ's findings of fact must provide an explanation for the resolution of conflicts in the evidence and must reflect proper consideration of evidence that could support contrary findings. Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000).

[Nuclear and Environmental Whistleblower Digest VIII A 2 c]
APA REQUIREMENTS; FINDINGS OF FACT AND CONCLUSIONS OF LAW; INSUFFICIENT FOR ALJ MERELY TO RECITE TESTIMONY OF WITNESSES

In Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1 (ARB Apr. 25, 2000), the ARB criticized the ALJ's recommended decision for not making express findings of fact. The ARB wrote:

The ALJ's 20-page recommended decision contains 14 pages captioned "Summary of the Testimony and Other Evidence at Trial," which merely recites the testimony of each witness as it was given. The section of the recommended decision captioned "Findings of Fact and Conclusions of Law" in turn contains a few bare findings. Although a summary of the transcript and exhibits provides a useful index to the record, it is not an adequate substitute for findings of fact. Fortunately, because the Board's review is de novo, the lack of findings in the ALJ's decision does not prevent us from deciding this case.

Id. @ n.11.

[N/E Digest VIII A 2 c]
ALJ'S RESPONSIBILITY TO ISSUE PRELIMINARY ORDER IN ERA CASE

In Overall v. Tennessee Valley Authority, 97-ERA-53 (ARB Apr. 27, 1998), the ARB remanded the case (without holding the petition for review under abeyance) where the ALJ had found that Respondent violated the ERA, and recommended that the Secretary issue an order providing for reinstatement and other relief. The ARB noted that regulatory amendments to 29 C.F.R. Part 24, which were effective March 11, 1998, specify that the ALJ who issues a recommended decision that the complaint has merit is also to issue a preliminary order granting relief under Section 211. 63 Fed. Reg. 6624 (Feb. 19, 1998), to be codified at 29 C.F.R. §24.7 (c)(2).

APA REQUIREMENTS; DECISION OF ALJ THAT DID NOT CONTAIN RULINGS ON PROPOSING FINDINGS OF FACT AND CONCLUSIONS OF LAW
[N/E Digest VIII A 2 c]

In Smith v. Littenberg, 92-ERA-52 (Sec'y Sept. 6, 1995), the Respondents contended that the ALJ violated the Administrative Procedure Act because he did not rule on their proposed findings of fact and conclusions of law. The Secretary found that the APA does not require a decision maker explicitly to accept or reject each parties' proposed findings and conclusions. See Lockert v. United States Dept. of Labor, 867 F.2d 513, 517 (9th Cir. 1989).

VIII A 2 c Absence of legal citation renders ALJ's decision as having been made without conclusions of law

In Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995), the ALJ's recommended decision and order contained no citation of legal support for the findings made. The Secretary observed that this resulted in the ALJ having made no conclusions of law in accordance with 29 C.F.R. § 18.57.

VIII A 3 Obligation of ALJ to follow Secretary's decisions

An ALJ has no authority to refuse to follow clearly applicable precedent from the Secretary. Lockert v. Pullman Power Products Corp., 84-ERA-15 (Sec'y Aug. 15, 1985). Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991).

VIII A 3 Responsibility of ALJ to know Secretarial interpretation of the law

The Secretary, subject to judicial review, interprets the whistleblower statutes and implementing regulations. It is incumbent on ALJs therefore, to familiarize themselves with Secretarial decisions which are controlling to assure uniformity in like cases and therefore fairness to litigants. See Lockert v. Pullman Power Products Corp., 84-ERA-15 (Sec'y Aug. 19, 1985), slip op. at 2-3. Cowan v. Bechtel Construction, Inc., 87-ERA-29 (Sec'y Aug. 9, 1989).

VIII A 3 Obligation of ALJs to be familiar with Secretary's interpretations of law

The Secretary, subject to judicial review, interprets the whistleblower statutes and implementing regulations. It is incumbent upon the ALJ's to familiarize themselves with the Secretary's decisions to ensure uniformity and fairness of decisions.

In a case arising in the Fifth circuit, the Secretary declined to follow Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984), with respect to a whistleblower who alleged only an internal complaint.

Bivens v. Louisiana Power & Light, 89-ERA-30 (Sec'y June 4, 1991).

VIII A 4 Relevancy of activities during ALJ proceedings

In Varnadore v. Oak Ridge National Laboratory, 92- CAA-2, 5 and 93-CAA-1 (ALJ June 7, 1993), the ALJ recognized post-hearing activity by the Respondent -- the posting of a memorandum ridiculing the Complainant -- to be relevant, and that the timing and the contents of the memo raised the inference of retaliation. The explanation of intent to educate newer employees about another view of radiation (that it's not as bad as the public believes) was clearly pretext.

[Editor's note: The ALJ did not address the question of whether this activity was within the scope of the complaint before him. Is it a permissible amendment of the complaint? Should it have been the subject of a separate complaint?]

[Nuclear & Environmental Whistleblower Digest VIII A 4]
JURISDICTION TO DETERMINE JURISDICTION

A tribunal can assume jurisdiction for the purpose of determining whether it has jurisdiction to hear a case. Migliore v. Rhode Island Dept. of Environmental Management, ARB No. 99 118, ALJ Nos. 1998 SWD 3, 1999 SWD 1 and 2 (ARB July 11, 2003). In Migliore the ARB assumed jurisdiction to rule on motions relating to the Assistant Secretary for OSHA's authority to intervene to cure a state sovereign immunity bar to a DOL whistleblower suit.

[N/E Digest VIII A 4]
ALLEGED HARASSMENT OF POTENTIAL WITNESS; ALJ'S AUTHORITY TO ISSUE PROTECTIVE ORDER

In Nason v. Maine Yankee Atomic Power Co., 97-ERA-37 (ALJ Nov. 10, 1997), Complainant moved for a protective order directing a person (who was not a party to the instant proceeding) to cease and desist from further contact with and harassment of a potential witness. The ALJ denied the motion on the ground it did not request something properly within the realm of a protective order (see 29 C.F.R. § 18.46). The ALJ, however, noted that a employee who is about to testify in an ERA proceeding may have a right of action under the ERA if he or she is intimidated, threatened, restrained, coerced, blacklisted, discharged, or otherwise discriminated against.

VIII A 4 ALJ has no authority to review Secretary's final order

In Howard v. Tennessee Valley Authority, 93-ERA-20 (ALJ Feb. 5, 1993), aff'd (Sec'y June 30, 1993), the Complainant filed a request for review of the Secretary's adverse decision in case number 91-ERA-36. The ALJ issued an order to show cause directing the parties to establish why the case should not be dismissed given that the regulatory procedure for appeal of the Secretary's final decision is with the United States court of appeals for the circuit in which the violation allegedly occurred. See 29 C.F.R. § 24.7(a). The Respondent contended that the appeal could be dismissed on two grounds: lack of jurisdiction and res judicata. The ALJ declined to rule on the res judicata ground, but simply found that he had no authority to review the final order the Secretary rendered pursuant to 29 C.F.R. § 29.6.

VIII A 4 Subject matter jurisdiction

In Coupar v. Federal Prison Industries/Unicor, 92- TSC-6 and 8 (ALJ May 8, 1992) (order granting request for subpoenas), the ALJ had occasion to address subject matter jurisdiction. Respondent contended that the ALJ should not issue certain subpoenas because Complainant assertedly was not an "employee" within the meaning of the Acts under which he brought his complaint.

Reviewing federal decisions and the decisions of the Secretary of Labor, the ALJ concluded that an ALJ has jurisdiction to hear a whistleblower case if the case is of a class that the judge has been given the power to hear, and the respondent employer is of a type that is covered by the statute or statutes in question.

The ALJ found that TSCA applies to all federal entities unless excepted, see 15 U.S.C. § 2619, and that Respondent was therefore an employer over which the ALJ had subject matter jurisdiction. The issue of whether Complainant (a federal prisoner) was an employee was a finding of fact to be determined.

[Editor's note: Respondent's employees refused to comply with the subpoenas. See Coupar v. Federal Prison Industries/Unicor, 92-TSC-6 and 8 (ALJ June 11, 1992).]

The ALJ revisited the subject matter jurisdiction question in his Recommended Decision and Order. Coupar v. Federal Prison Industries/Unicor, 92-TSC-6 and 8 (ALJ June 11, 1992). The ALJ concluded there that "an ALJ has jurisdiction over whistleblower cases where (1) the employer is subject to the whistleblower statute and (2) the complaint alleges a violation of the statute."

[Editor's note: Judge Smith's real view might be that the Secretary misuses "jurisdiction" when referring to a non-covered employer. This may be as much a question of fact as the employee question. Both employer and employee issues are threshold issues -- not jurisdictional, but an element of the case that if not established precludes recovery. This seems to comport better with the federal case cited by Judge Smith (I think he endeavors to fit the Secretary's cases into this scheme, but not very convincingly. That federal case states: "Subject matter jurisdiction is 'the power to adjudge concerning a general question involved and is not dependent upon the state of facts which may appear in a particular case. . . . It is the power to hear and determine causes of the class in which the particular controversy belongs. . . .'" Edwards v. Director, OWCP, 932 F.2d 1325, 1328-29 (9th Cir. 1991) (quoting Ramos v. Universal Dredging Corp., 653 F.2d 1353, 1357 (... 1981)).]

VIII A 4 Jurisdiction over non-Part 24 complaints

Where the Complainant filed complaints under the employee protection provisions of both the Solid Waste Disposal Act, as amended, 42 U.S.C. § 6971 (1988) and the Occupational Safety & Health Act of 1970, § 11(c), 29 U.S.C. § 660(c), the ALJ does not have jurisdiction over section 11(c) complaints filed under OSHA. Hence, in Conaway v. Valvoline Instant Oil Change, Inc., 91-SWD-4 (Sec'y Jan. 5, 1993), the Secretary limited her review to the complaint under the SWDA, and declined to review the ALJ's Recommended Decision & Order with respect to the OSHA complaint.

VIII A 4 ALJ's scope of review; Events occurring outside 30 days prior to filing of complaint

In Miller v. Ebasco Services, Inc., 88-ERA-4 (ALJ Nov. 24, 1992), aff'd (Sec'y Nov. 24, 1992), the administrative law judge found that only those events occurring within thirty days of the filing of the complaint were actionable under the Energy Reorganization Act of 1974, 42 U.S.C. § 5851(b)(1) and 29 C.F.R. § 24.3(b), but did consider all relevant events as evidence of a possible pattern of discrimination irrespective of their time of occurrence.

VIII A 4 ALJ's continuing jurisdiction over protective order

See Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995), slip op. at 6- 7, casenoted at VII A 5 in regard to the ALJ's continuing jurisdiction over protective orders.

VIII A 5 Standard for disqualification of ALJ

In Flor v. United States Department of Energy, 93-TSC-1 (Sec'y Dec. 9, 1994), the Complainant requested that the Secretary remand the case to a different ALJ for hearing. The Secretary noted that an ALJ may be disqualified upon a substantial showing of personal bias, and that the standard for establishing improper bias is that the ALJ in some measure has adjudged the facts and the law of a case in advance of hearing them.

In the instant case, although the ALJ had erroneously recommended the grant of summary judgment, there was no indication in the record that the ALJ has prejudged the facts or the law of this case, and the Secretary denied the request for reassignment to a different ALJ.

[Nuclear and Environmental Whistleblower Digest VIII A 5]
RECUSAL; BIAS MUST BE SHOWN TO STEM FROM EXTRA-JUDICIAL SOURCE; ATTORNEY CANNOT CREATE GROUNDS FOR RECUSAL

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ had suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). On appeal, the attorney and his client argued that the Associate Chief ALJ had been biased and had improperly failed to recuse himself "sua sponte" as they had requested.

The Board found that the attorney and his client had failed either to argue circumstances demonstrating that the judge was improperly biased against the attorney or to submit an affidavit to support recusal due to such bias as required by 29 C.F.R. § 18.31(b). Moreover, the Board stated that to overcome the presumption that ALJs act impartially, "Mr. Slavin would have to allege that Judge Burke harbored bias stemming from an extra-judicial source, rather than what he learned regarding Mr. Slavin from the evidence and proceedings in this case." (citations omitted). The Board rejected the petitioners' argument that the judge instituted the proceeding to retaliate against the attorney's criticism of DOL officials and the judge, finding that "an attorney should not benefit from the disqualification of a judge based on a controversy that the attorney has created." (citations omitted). The Board also rejected the petitioners' argument that the judge created the controversy; the Board finding that the attorney's professional misconduct had been well-documented by DOL ALJs, the ARB, and state and federal courts before the judge in a Notice of Judicial Inquiry, that the judge had administrative responsibility over whistleblower adjudications at OALJ and had learned of the attorney's misconduct in this capacity, and therefore he had "acted on his managerial and judicial responsibility to initiate a Section 18.34(g)(3) inquiry."

[Nuclear & Environmental Whistleblower Digest VIII A 5]
DISQUALIFICATION OF ALJ; STOCK HOLDINGS; APPROPRIATE CONSULTATION WITH DESIGNATED AGENCY ETHICS OFFICIAL

In Smalls v. South Carolina Electric & Gas, ARB No. 01 078, ALJ No. 2000 ERA 27 (ARB Feb. 27, 2004), the ALJ became aware at the close of the first day of a two day hearing that he owned stock in the Respondent's parent company when a document was admitted into evidence bearing the logo of the parent company. The ALJ disclosed the circumstance to the parties, which both stated that they had no objection to the ALJ continuing to preside over the hearing and deciding the case. On review, however, the ARB became concerned because the record did not indicate the value of the stock or other information relevant to the ethics regulations at 5 C.F.R. Part 2635. Thus, the Board had its General Counsel make inquiries. In response, the ALJ provided e mail documentation that he had consulted with the appropriate Designated Agency Ethics Official, who had advised that the circumstances did not require the ALJ's recusal. Noting that the parties had been served with the ARB's inquiry and the ALJ's response and had not raised an objection, and citing 5 C.F.R. § 2635.107(b) (providing that disciplinary action for ethics regulations will not be taken against an employee who has engaged in conduct in good faith reliance upon the advice of an agency ethics official), the ARB found it unnecessary to address the issue further.

[Nuclear & Environmental Whistleblower Digest VIII A 5]
RECUSAL; OALJ'S IGNORING OF COMPLAINANT'S REQUEST TO SELECT ALJ WHO HAD NEVER HAD COMPLAINANT APPEAR BEFORE HIM IN THE PAST

In Hasan v. Wolf Creek Nuclear Operating Corp., 2002 ERA 29 (ALJ July 8, 2002), Complainant filed with the Chief ALJ a motion to recuse the presiding ALJ because OALJ had assigned that judge to the case, ignoring Complainant's request when the hearing request was made to assign a judge, "who has never been involved in [Complainant's] prior ERA cases." The Chief ALJ referred the motion to the presiding ALJ.

The presiding ALJ declined to recuse himself because the Complainant had not demonstrated any facts which would tend to show bias or prejudice, personal or otherwise, against him or in favor of an adverse party. The ALJ also noted that a motion to recuse may not properly be used for judge shopping.

[Nuclear & Environmental Digest VIII A 5]
ALJ BIAS; PRESUMPTION OF HONESTY AND INTEGRITY

In Cox v. Lockheed Martin Energy Systems, Inc., ARB No. 99-040, ALJ No. 1997-ERA-17 (ARB Mar. 30, 2001), Complainants asserted that the ALJ was biased against them. The ARB held that the Complainants could not "prevail on such a claim of bias unless they can first overcome a presumption of honesty and integrity that accompanies administrative adjudicators. See Withrow v. Larkin, 421 U.S. 35, 47 (1975); Ash Grove Cement Co. v. FTC, 577 F.2d 1368, 1376 (9th Cir. 1978), cert. denied 439 U.S. 982; High v. Lockheed Martin Energy Sys., Inc., ARB No. 98-075, ALJ No. 96-CAA-8 (ARB Mar. 13, 2001)." In the instant case, the ARB found that Complainants had alleged no more than a dissatisfaction with the ALJ's attitude and the manner in which he conducted the proceedings -- allegations which standing alone are insufficient to establish bias.

To the same effect: High v. Lockheed Martin Energy Systems, Inc., ARB No. 98-075, ALJ No. 1996-CAA-8 (ARB Mar. 13, 2001) (even if ALJ became angry when confronted with an allegation of bias, a momentary loss of judicial temperament, standing alone, is insufficient to overcome presumption of honesty and integrity).

[Nuclear and Environmental Whistleblower Digest VIII A 5]
RECUSAL; APPEARANCE OF IMPARTIALITY

In Graf v. Wackenhut Services, L.L.C., 1998-ERA-37 (ALJ Apr. 28, 2000), the ALJ granted Complainant's motion for recusal where, although the ALJ did not find that he harbored any actual bias or prejudice against Complainant's counsel, concluded that a disinterested observer, knowing all the relevant facts (counsel's filing of an ethics complaint about the ALJ and the responses thereto), might reasonably question the ALJ's impartiality. The ALJ employed, in this regard, the judicial recusal standard at 28 U.S.C. § 455(a).

[Nuclear and Environmental Digest VIII A 5]
RECUSAL; BOTH PARTIES BELIEVE ALJ BIASED

In Fanning v. Ramsey Schilling Consulting Group, 1998-CAA-2 (ALJ Jan. 21, 1999), both Complainant and Respondent accused the ALJ of being biased toward the other party and requested that he recuse himself. The ALJ granted the requests, finding that "it is evident that the animosity between the parties is so great that my attempts to be impartial have been misinterpreted by each party as bias toward the other party."

[N/E Digest VIII A 5]
RECUSAL; BASIS ON ASSERTED JUDICIAL ANNOYANCE WITH COUNSEL AND ERROR IN APPLICATION OF LAW

In Shelton v. Oak Ridge National Laboratory, 95-CAA-19 (ALJ Apr. 21, 1998), Complainant moved for the recusal of the ALJ in regard to consideration of a motion for reconsideration based on alleged "apparent and continuing prejudice against and annoyance at counsel," and on an error of law which caused "an appearance of impropriety in appearing to punish both counsel and Complainant...."

The motion was determined to be frivolous, the ALJ finding no credible basis for concluding that he had been improperly biased in the matter. The ALJ wrote: "Neither judicial criticism of counsel nor adverse judicial rulings, standing alone, constitute a valid basis for a motion for disqualification. Rather, disqualification must be based on such a high degree of favoritism or antagonism as to make fair judgment impossible. Liteky v. United States, --- U.S. ----, ----, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). See also Standing Committee on Discipline of U.S. Dist. Court for Cent. Dist. of California v. Yagman, 55 F.3d 1430 (9th Cir. 1995); Flor v. U.S. Dept. of Energy, 93-TSC-1 (Sec'y Dec. 9, 1994)."

[N/E Digest VIII A 5]
ALLEGED BIAS OF ALJ; ALJ'S REVIEW OF EVIDENCE PROFFERED BY RESPONDENT PUTTING COMPLAINANT IN UNFAVORABLE LIGHT

In Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB Jan. 6, 1998), Complainant alleged that the ALJ was biased because, inter alia, he may have looked at some of Respondent's exhibits (which revealed adverse information about Complainant) before they were actually introduced into evidence. The documents were offered by Respondent to show that Complainant would have been fired anyway. The ARB, however, held that the ALJ had to review the material to exercise his discretion whether to admit it. In fact, the ALJ sustained Complainant's counsel's objections, and the documents were not included in the record. The ARB found no evidence that review of the material influenced the ALJ's findings.

Complainant also alleged bias because the ALJ refused to sign an order sealing the documents. The ARB observed that the documents, in fact, were never received into evidence and were not included in the court reporter's looseleaf binder of respondent's exhibits (the documents, however, were placed in a folder marked "Rejected Exhibits"). The ARB also observed that even if the documents had been included in the record and had been placed under "seal" by the ALJ, whether they would be available to the public would be determined by the FOIA and applicable FOIA regulations. See 29 C.F.R. Part 70.

[N/E Digest VIII A 5]
ALLEGED BIAS OF ALJ; QUESTIONING OF WITNESSES

In Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB Jan. 6, 1998), Complainant alleged that the ALJ was biased because, inter alia, he excessively questioned witnesses and assisted Respondent's counsel. The ARB noted that an ALJ, "of course," has the authority to question witnesses directly, 29 C.F.R. § 18.614(b), and found that the ALJ did not abuse that authority nor improperly assist Respondent's counsel.

BIAS; FINANCIAL TRANSACTION OF ALJ
[N/E Digest VIII A 5]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), Complainant argued that he was denied a fair hearing because of the ALJ's alleged bias. In this regard, Complainant asserted that the ALJ during the course of the hearing had "entered into a financial arrangement concerning the mortgage on the ALJ's residence with a subsidiary of a parent company having a significant role in the energy industry." The Board found that "the asserted connection between the ALJ and the energy industry was too tenuous to pose a prohibited appearance of impropriety." Slip op. at 3 n.5.

BIAS; ALJ'S IMPATIENCE WITH COUNSEL
[N/E Digest VIII A 5]

In Seater v. Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996), Complainant argued that he was denied a fair hearing because of the ALJ's alleged bias. In this regard, the Board found that the transcript indicated that the ALJ had expressed annoyance and frustration with Complainant's counsel. Nonetheless, the Board did not find bias on the part of the ALJ that deprived Complainant of a fair and impartial hearing, noting that the ALJ had also attempted "to defuse the exceptional level of tension and hostility generated in the courtroom by the issues arising in the case." The Board also found that the ALJ's rulings demonstrated efforts to be even-handed.

RECUSAL; ALJ LETTER TO PARTIES NOTIFYING THEM OF RECENT DECISION
[N/E Digest VIII A 5]

In Robinson v. Martin Marietta Services, Inc., 94-TSC-7 (ARB Sept. 23, 1996), Complainant asserted that the ALJ should have recused himself after he sent a letter to counsel for Respondents, stating that the Secretary's decision in Reid v. Methodist Hospital Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995), pet. filed, No. 95-3648 (6th Cir. June 1, 1996) "may be relevant to some of the procedural issues" in the instant case. The ALJ attached a copy of the decision to the letter. He also sent a copy of the letter to Complainant's counsel, but did not attach a copy of the decision, explaining that Complainant's counsel had been served with the Reid decision because he was also counsel in that case.

The Board held that the ALJ's letter "simply notified all of the counsel in this case about a recent decision by a binding authority relating to the determination of an 'employer' within the CAA's employee protection provision [an issue in the case]". Slip op. at 5. The Board held that the ALJ did not err in denying recusal because the letter did not show prejudgment of the facts or the law.

RECUSAL; JUDGE WHO HAD PRESIDED OVER RELATED OR PRIOR PROCEEDINGS
[N/E Digest VIII A 5]

In Billings v. Tennessee Valley Authority, 91-ERA-12 (ARB June 26, 1996), Complainant sought recusal by the presiding ALJ, who had presided over earlier, related cases involving Complainant. The Board affirmed the ALJ's ruling denying recusal. See 29 C.F.R. § 18.31; 28 U.S.C. §§ 144, 455(a), 455(b)(1). An excerpt from the Board's discussion follows:

Under 28 U.S.C. § 144, a judge is presumed to be impartial, and a substantial burden is imposed on the requesting party to prove otherwise. . . .
Absent specific allegations of personal bias or prejudice, neither prior adverse rulings of a judge nor his participation in a related or prior proceeding are sufficient for recusal under 28 U.S.C. § 144. ... Adverse rulings in previous proceedings, whether correct or erroneous, involving the same judge and the party requesting recusal, are an insufficient basis for recusal. ...
Similarly, under 28 U.S.C. § 455(a), opinions held by judges as a result of what they learned in earlier proceedings are not bias or prejudice requiring recusal, and it is normal and proper for a judge to sit in the same case upon remand and successive trials involving the same defendant. The source of the appearance of partiality must arise from something other than the judge's mere involvement in previous cases concerning the parties in the present case.

Slip op. at 5-7 (citations omitted).

RECUSAL; MOTION SHOULD BE FILED INITIALLY WITH ALJ
[N/E Digest VIII A 5]

In Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (Sec'y Dec. 13, 1995)(order), the Secretary ruled that any motion for recusal and reassignment of the ALJ should be filed, at least initially, with the presiding ALJ. The Secretary distinguished Spearman v. Roadway Express, Inc., Case No. 92-STA-1, Sec. Dec., June 30, 1993, aff'd sub nom. Roadway Express, Inc. v. Reich, No. 93-3787, 1994 U.S. App. LEXIS 22924 (6th Cir. Aug. 22, 1994), where the recusal motion was filed with the Secretary after the ALJ had issued the recommended decision.

VIII A 5 Recusal of ALJ

In Billings v. Tennessee Valley Authority, 89-ERA- 16 and 25, and 90-ERA-2, 8 and 18 (Sec'y July 29, 1992), the Secretary rejected the complainant's contention that the ALJ should have recused himself because he had allegedly displayed great animus towards the complainant by ignoring his ill health and forcing him to proceed with five cases at one time against medical advice. The ALJ had granted several continuances because of complainant's ill health; the ALJ had made no decision requiring the complainant to proceed with five cases at once; it was not established that proceeding with five cases would have been unduly burdensome to complainant; review of the entire record revealed no basis for the ALJ to have recused himself.

VIII. A. 6. Effect of ALJ's actions or inactions

In Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993), the Respondent contended that it had been denied due process when the ALJ issued his recommended decision and order outside the 20-day time of 29 C.F.R. § 24.6(a), and the Secretary did not issue his final decision within 90 days of the receipt of the complaint as provided by 29 C.F.R. § 24.6(b). The Secretary found no violation of due process because the ERA provides no consequences for failure to meet the short decisional deadlines, such time limits being directory and not jurisdictional.

[N/E Digest VIII A 6]
TIME PERIOD FOR RESPONSE TO MOTION

In Tracanna v. Arctic Slope Inspection Service, 97-WPC-1 (ARB Nov. 6, 1997), the ARB criticized the ALJ for waiting only one day following Respondent's motion for sanctions for Complainant's failure to comply with discovery requests to issue an order granting those sanctions. See 29 C.F.R. § 18.6(b).

[Editor's note: The ALJ had earlier issued an order directing Complainant to answer the discovery requests and to show cause why the requests for admissions should not be deemed admitted. When Complainant did not respond, the ALJ had issued an order deeming that Respondent's request for admissions to be admitted, but did not issue the sanctions order until after Respondent filed its motion for additional sanctions].

[N/E Digest VIII A 6]
ALJ NOT REQUIRED TO SPECIFICALLY ADDRESS ALL ARGUMENTS AND EVIDENCE IF REASONING IS SUFFICIENTLY CLEAR

In Odom v. Anchor Lithkemko, 96-WPC-1 (ARB Oct. 10, 1997), Complainant attacked the ALJ's recommended decision on the ground that the ALJ had not discussed all the favorable evidence and arguments mentioned in Complainant's post-hearing pleadings. The ARB, however, noted that an ALJ is "not required to explicitly accept or reject each of the parties' proposed findings and conclusions in the recommended decision." Slip op. at 3 (citations omitted). Rather, the ARB indicated that the ALJ's decision only needed to be sufficiently clear so that an appellate court does not have to speculate as to its basis. The ARB found that the ALJ's reasoning was clear.

VIII. A. 6. Effect of ALJ's actions or inactions

VIII A 7 Remand; need for additional hearing

In Janenisch v. Chicago Bridge & Iron Co., 81- ERA-5 (ALJ July 11, 1983), the case was remanded to the ALJ following a order from the Second Circuit vacating and remanding the Secretary's earlier Final Order in the matter. The ALJ issued an order to show cause why the case should not be decided based on the existing record, and finding no good cause shown, decided the case in that manner.

[Nuclear and Environmental Whistleblower Digest VIII A 7]
LAW OF THE CASE; ON REMAND ALJ MAY DECIDE ISSUES LEFT OPEN BY ARB MANDATE

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), Respondent argued that Complainant's request for an enhancement of his back pay award to take into account the adverse tax consequences of receiving a lump sum payment should be denied on the ground, inter alia, that the request was outside the scope of the ARB's earlier remand order. The ALJ agreed with this objection and struck those portions of the Complainant's motion.

The ARB disagreed with the ALJ, looking by analogy to the powers of a district court upon remand of a case by an appellate court. The ARB wrote that "[t]he Supreme Court has reasoned that '[t]he doctrine of law of the case comes into play only with respect to issues previously determined,'and on remand, a lower court '"may consider any matters left open by the mandate"' of the superior court. Quern v. Jordan, 440 U.S. 332, 337 n.18 (1979), quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 256 (1895). See also Liberty Mutual Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir. 1982) and 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §4478, at 793 (1981)." Doyle, 1989-ERA-22 (ARB May 17, 2000) @ 10-11. Thus, the ARB found that "because the Board had not decided the issue of a tax enhancement, ... the ALJ was free to decide it."

[N/E Digest VIII A 7]
MOTION IN LIMINE; SCOPE OF REMAND ORDER

In Saporito v. Florida Power & Light Co., 89-ERA-7 and 17 (ALJ Oct. 15, 1997), the Secretary had remanded part of the case for consideration under the dual motive analysis, and a recommendation by the ALJ on whether Complainant "would have been fired for legitimate reasons even if he had not engaged in protected activity." Because the original ALJ had retired, a new ALJ was assigned to the case on remand. Respondent filed a motion in limine seeking to limit the remand inquiry to evidence on the allegedly discriminating actor's motive in discharging Complainant, and Complainant's rebuttal of that evidence.

The ALJ found that although the Secretary's remand was specific in regard to the issue to be inquired into -- the dual motive analysis -- it did not limit the ALJ's discretion in how to accomplish the remand mandate. Considering that the original ALJ was not presiding over the remand, that the original ALJ had not considered dual motive analysis, that discrimination cases often must be proved by circumstantial evidence, and that credibility findings would be necessary to render findings about an actor's motives, the ALJ denied Respondent's motion.

See also Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), a STAA whistleblower decision indicating that a new hearing on remand for determination of damages is not necessarily required where the remand order did not explicitly require a second hearing, the existing record contained sufficient evidence to reasonably make a damage award, and Respondent had ample opportunity to present its evidence regarding the damages in the initial hearing.

VIII A 7 Scope of ALJ's authority to go beyond remand order

It is doubtful that the law of the case doctrine can be extended to administrative proceedings. Thus where the Secretary had remanded a whistleblower case to the administrative law judge based on her finding that the administrative law judge's analysis of the complainant's evidence in the first decision was perfunctory and thus unacceptable, the administrative law judge did not substantially expand upon that analysis in the second, the Secretary was not estopped from accepting the administrative law judge's second decision. The court indicated that the Secretary's remand discretion in ERA whistleblower cases is broad -- he or she may remand for further findings even if those findings may ultimately prove irrelevant. Lockert v. United States Dept. of Labor, 867 F.2d 513, 517 (9th Cir. 1989).

[Editor's note: The implication, I think, is that on a remand, the Secretary's remand order may prove ill conceived, and the ALJ may do otherwise if appropriate.]

VIII A 7 Reinstatement

Although the Secretary's Order in June 1988 required the employer to reinstate Complainant, the Secretary no longer required reinstatement where the evidence presented at the hearing on remand revealed that Complainant had been hired only for the duration of project from which he was unlawfully terminated. Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991).

VIII A 8 Authority to issue a TRO or an injunction

In Marcus v. United States Environmental Protection Agency, 92-TSC-5 (ALJ Dec. 22, 1993) (post-decision order), Complainant requested that the ALJ issue a temporary restraining order and an injunction requiring Respondent to take action to prevent the termination of employee health insurance benefits while the ALJ's recommended decision and order is pending the issuance of a final order by the Secretary of Labor. The ALJ had issued a recommended decision in favor of Complainant on December 3, 1992, and Complainant contended that his health insurance benefits were to expire on December 16, 1993, and because he and his wife have pre-existing health problems, it will be impossible to obtain comparable benefits to those enjoyed under Respondent's plan.

The ALJ noted that the question of whether an DOL ALJ has the authority to issue an injunction in whistleblower cases is one of first impression, and that the only federal decision touching on the issue of whether an ALJ can issue a TRO or an injunction is Exxon Corp. v. Federal Trade Commission, 411 F. Supp. 1362, 1367 (1976). The court in that case, however, ultimately did not decide whether the ALJ had the authority, noting that "the question is a difficult one calling for examination of constitutional rights as well as statutory powers."

The ALJ found that the regulations only empowered him to issue a recommended decision and order, which was not enforceable in a court of law because the Secretary issues the final order. Thus, he concluded that he did not have the power to issue an injunction, and referred the matter to the Secretary.

[Nuclear & Environmental Digest VIII A 8]
FINDINGS OF FACT AND CONCLUSIONS OF LAW; NUMBERING OF PARAGRAPHS

In Cox v. Lockheed Martin Energy Systems, Inc., ARB No. 99-040, ALJ No. 1997-ERA-17 (ARB Mar. 30, 2001), Complainants filed a number of objections to the ALJ's recommended decision, including a complaint that the ALJ had "fail[ed] to organize any of his conclusions by paragraph numbers." The ARB found that this objection was without merit and did not warrant discussion.

[Nuclear and Environmental Whistleblower Digest VIII A 8]
EX PARTE COMMUNICATION; OBLIGATION TO INFORM OPPOSING PARTY AND CONSIDER SANCTIONS

In Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1 @ n.15 (ARB Apr. 25, 2000), the ARB noted that the record did not indicate that the ALJ had informed Respondent of a post-hearing, ex parte communication from Complainant, or that the ALJ had sanctioned Complainant for the communication. See 29 C.F.R. §18.38. The communication reported Complainant's belief that a witness had committed perjury.

[Nuclear and Environmental Digest VIII A 8]
COMPLAINT OF CONTINUING HARASSMENT; ALJ'S DISCRETION IN REGARD TO WHETHER TO REOPEN THE RECORD AND RECONVENE THE HEARING

In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 @ 6-7 (ARB Feb. 9, 1999), the ARB denied Complainant's request that the Board consider newly tendered evidence of continuing harassment. The ALJ had previously denied Complainant's motion to reopen the record and reconvene the hearing on the ground that granting the motion would unduly delay a final disposition, and that Complainant could file a new complaint with OSHA. The ARB held that the ALJ's denial of the motion to reopen the record and reconvene the hearing was sound because (1) "an ALJ has control of his docket and reasonably may decide that it is more expeditious to handle new allegations in a separate complaint", and (2) Complainant "has recourse to a separate retaliation complaint under which he may receive a complete remedy." The ARB observed that the CAA and similar statutes explicitly forbid acts of retaliation against an employee because the employee has filed a complaint under the whistleblower provision. 42 U.S.C. §7622(a)(1). Thus, the ARB declined to consider Complainant's newly tendered documentation.

[N/E Digest VIII A 8]
FINDINGS OF FACT AND CREDIBILITY DETERMINATIONS

In Roberts v. Rivas Environmental Consultants, Inc., 96-CER-1 (ARB Sept. 17, 1997), the ARB noted that although the ALJ had made implicit credibility determinations in his recommended decision, "our review would have benefitted from more expansive findings of fact, including specific credibility determinations. Pages 2-22 of the R.D. and O. do not provide such findings because they merely summarize the testimony of the various witnesses."

[N/E Digest VIII A 8]
UNETHICAL CONDUCT; OBLIGATION OF ALJ TO RESOLVE UNCERTAINTIES SURROUNDING QUESTIONABLE CONDUCT

In Webb v. Carolina Power & Light Co., 93-ERA-42 (ARB Aug. 26, 1997), the ARB pointed out a number of suspicious discrepancies between a handwritten and signed statement about Complainant's performance by Complainant's former supervisor, and a typed version supplied by Respondent to the DOL investigator. The ARB found that these discrepancies were "highly probative of an effort to cover up unlawful motivation on [the former supervisor's] part." Slip op. at 9. The ARB criticized the ALJ for not pursuing the issue, writing that "[w]here the integrity of the Department's adjudicative processes are at stake, the presiding Administrative Law Judge should take all appropriate steps to resolve the uncertainty surrounding questionable conduct." Id. The ARB also wrote that

If [Respondent's] counsel knowingly allowed the altered version to be submitted to the Department of Labor assuming that it would be accepted as a typed version of the handwritten statement, that would be a serious violation of the standards of conduct for practice before the administrative tribunals of the Department. See 29 C.F.R. § 18.36(a): "All persons appearing in proceedings before an administrative law judge are expected to act with integrity, and in an ethical manner."

Id.

VIII A 8 Authority of ALJ to remand

In Floyd v. Arizona Public Service Co., 90-ERA-23 (ALJ Mar. 19, 1990), the administrative law judge remanded the matter to the Assistant District Director for further investigation where the complaint had originally been dismissed on the ground that it "contain[ed] insufficient information to determine the timeliness and coverage under applicable statutes." The motion to remand was based on the decision in Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y July 9, 1986), in which the Secretary issued a remand after ruling that a "Complainant is not required to set forth proof in his complaint" and that a complaint cannot be dismissed "on the ground that it fails to state a cause of action." Although acknowledging that Niagara Mohawk was not on all fours with the instant matter, the ALJ concluded that the regulations did not contemplate rejecting a complaint solely on the basis of nonconformity. See 29 C.F.R. § 24.4(d)(1) ("the Administrator shall complete the investigation..." (emphasis added)).

[Editor's note: The decision did not discuss the ALJ's authority to issue an order of remand rather than simply a recommended order of remand]

VIII A 8 Authority to issue a TRO or an injunction

In Marcus v. United States Environmental Protection Agency, 92-TSC-5 (ALJ Dec. 22, 1993), Complainant requested a temporary restraining order and an injunction requiring that the EPA take action to prevent the termination of employee health insurance plan that covers Complainant and his family. The ALJ had previously issued a recommended decision in favor of Complainant which was still pending review before the Secretary.

The ALJ found that since he lacked enforcement authority or the authority to issue a final order in the case, and since the case was pending before the Secretary, he would refer the matter to the Secretary. The ALJ noted that Complainant may wish to consider whether the federal courts were the appropriate forum for the relief he sought.

VIII A 8 Secretary's direction that ALJ rule on discovery motions

In Flor v. United States Department of Energy, 93-TSC-1 (Sec'y Dec. 9, 1994), the Complainant requested the Secretary to grant her Motion Regarding Witness Interviews and Access to the Workplace, to order DOE to answer her discovery requests, and to hold that DOE has waived any discovery objections by failing timely to answer her discovery requests. The ALJ had recommended dismissal for failure to state a claim upon which relief can be granted. The Secretary treated this recommendation as a recommendation to grant summary decision, and concluded that, inter alia, the Respondent's failure to answer Complainant's discovery requests precluded a grant of summary decision.

Nonetheless, noting that the ALJ has all powers necessary to conduct fair and impartial proceedings prior to and during a hearing, the Secretary directed that, on remand, the ALJ should rule on the outstanding motions and requests concerning discovery.

8 b 1 a
VIII B 1 a Respondent's compliance with the ALJ's order does not moot Secretarial review

In McFarland v. City of New Franklin, Missouri, 86- SDW-1 (Sec'y July 17, 1990), the Secretary issued a Notice of Review and Briefing Schedule, rejecting thereby the Respondent's view that since it had complied with the ALJ's decision, the matter was moot. The Secretary wrote that the ALJ's decision is only recommended, and must be forwarded to the Secretary for review and issuance of a final order. An ALJ's order, therefore, is without finality.

Since the final order must be based on the entire record, 29 C.F.R. § 24.6(b), which includes not only the ALJ's recommended decision but the complaint, hearing transcript, exhibits submitted, all pleadings and motions and any other contents of the record, Polydorou v. A.J. Clarke Management Corp., Case No. 88-CAA-00007, Sec. Order Regarding Settlement Agreement, issued August 3, 1989, at 2, n.2, the review of an ALJ's decision is de novo. That Respondent may have voluntarily complied with the ALJ's recommendation does not abrogate these requirements for review of the ALJ's decision and the issuance of a final order.

[Nuclear & Environmental Whistleblower Digest VIII B 1]
ADMINISTRATIVE REVIEW BOARD; REVISION OF DELEGATION

On October 17, 2002, the Office of the Secretary published Secretary's Order 1 2002, addressing the delegation of authority and assignment of responsibility to the Administrative Review Board. 67 Fed. Reg. 64272 (Oct. 17, 2002). This Order replaces Secretary's Order 02 96, and provides modifications including, an increase in the total membership to a maximum of five members, clarifications of procedural authority, and codification of the ARB's location in DOL organizational structure.

[Nuclear & Environmental Whistleblower Digest VIII B 1 b]
REQUEST FOR REVIEW BY THE BOARD; EQUITABLE TOLLING; DELIVERY TO FOREIGN COUNTRY

In De Melo v. U.S. Dept. of Veterans Affairs, ARB No. 03 027, ALJ No. 2002 ERA 17 (ARB Mar. 25, 2003), Complainant argued that his petition for review by the ARB was late because of slow delivery of mail to Canada. Although the ARB considered the question to be close, they found giving the pro se litigant the benefit of a doubt that his petition for review was made within 10 days of receipt of the ALJ's decision, that there was no evidence that Complainant failed to notify the ALJ of a address change or waited an extended period to inquire into the status of a case, and that its own experience with mailing documents to Complainant confirmed that there was a delay in mail delivery. Accordingly the ARB found that Complainant was not responsible for the untimely filing, and accepted the petition for review.

VIII B 1 REVIEW BY SECRETARY; NOT NECESSARY TO FILE PETITION FOR REVIEW

Since cases brought under the ERA and other environmental whistleblower provisions are automatically reviewed by the Secretary, see 20 C.F.R. § 24.6, it is not necessary for a party to file a petition for review of an ALJ's recommended decision and order. Varnadore v. Oak Ridge National Laboratory, 94-CAA-2 and 3 (Sec'y Sept. 11, 1995).

VIII B 1 a Complainant cannot "waive" Secretarial review

In Howard v. Tennessee Valley Authority, 91-ERA-36 (ALJ June 13, 1991), the ALJ concluded that the complainant had withdrawn his appeal to the Secretary of the decision of another ALJ concerning the same alleged unlawful termination, see Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991), aff'd sub nom., Howard v. United States Department of Labor, 959 F.2d 234 (6th Cir. 1992), at issue in the instant case (the complainant alleged he had newly discovered evidence). The Secretary, however, indicated that because an ALJ's decision is only recommended, a complainant could not "waive" his right to oppose the recommended decision on review by the Secretary.

Howard v. Tennessee Valley Authority, 91-ERA-36 (Sec'y Jan. 13, 1993), slip op. at 4 n.3.

[Editor's note: I am not sure that I have interpreted the Secretary's ruling correctly. It appears that the ALJ was misinformed about the complainant's withdrawal in 90-ERA-24, because that case actually went to decision by the Secretary and was appealed to the Sixth Circuit. I think the Secretary is pointing out that a complainant cannot "waive" Secretarial review of an ALJ's recommended decision.]

VIII B 1 a Secretary automatically reviews ALJ decision, so it is not an "appeal"

Technically, it is error to refer to the Secretary's review of an ALJ's recommended decision as an "appeal". Rather, it is an automatic review. See 29 C.F.R. § 24.6(b).

Stokes v. Pacific Gas & Electric Co., 84-ERA-6 (Sec'y July 26, 1988).

VIII B 1 a Request for review of ALJ's decision not required to vest Secretary with jurisdiction

Because an ALJ's decision is only recommended, a request for review is not required to vest jurisdiction over the Secretary of a CAA whistleblower complaint. Heffley v. NGK Metals Corp., 89-SDW-2 (Sec'y Mar. 6, 1990) (order to submit settlement).

VIII B 1 b

As to effect of the failure of the Secretary to issue a decision within the statutory time limit, see the casenotes at VIII B 4.

[Nuclear and Environmental Digest VIII B 1 b]
TIME PERIOD FOR FILING APPEAL TO THE ARB; ARGUMENT THAT REGULATORY 10 DAY TIME PERIOD IS TOO SHORT IS AN INADEQUATE JUSTIFICATION FOR AN UNTIMELY APPEAL

In Williamson v. Washington Savannah River Co., ARB No. 07-071, ALJ No. 2006-ERA-30 (ARB June 28, 2007), the Complainant failed to file a petition for review of the ALJ's decision within 10 business days of issuance of the ALJ's decision, as required by the regulation at 29 C.F.R. § 24.8(a). The ARB observed that this regulation "is an internal procedural rule adopted to expedite the administrative resolution of cases arising under the environmental whistleblower statutes. Therefore, it is within the ARB's discretion, under the proper circumstances, to accept an untimely-filed petition for review." USDOL/OALJ Reporter at 3 (footnotes omitted). The Complainant's argued that 10 days was too little time for a pro se complainant to make an appeal. The ARB agreed that 10 days was a short time, but noted that pro se complainants had routinely been able to file appeals in that time frame. The ARB found the justification inadequate and dismissed the appeal.

[Nuclear and Environmental Whistleblower Digest VIII B 1 b]
TIMELINESS OF PETITION FOR ARB REVIEW; 10 BUSINESS DAYS FROM ISSUANCE OF ALJ DECISION

The regulation at 29 C.F.R. 24.8(a) provides that the ARB must receive a petition for review within 10 business days of the date the ALJ issued the recommended decision and order; neither the date on which the complainant received the recommended decision and order, nor the date on which he mailed his petition the review is relevant to the question of whether the petition was timely. Durham v. Tennessee Valley Authority, ARB No. 06-038, ALJ No. 2006-CAA-1 (ARB Feb. 27, 2006).

[Nuclear and Environmental Whistleblower Digest VIII B 1 b]
TIMELINESS OF PETITION FOR ARB REVIEW; DUE DILIGENCE MAY REQUIRE FILING BY FAX OR FEDERAL EXPRESS

Due diligence in requesting ARB review may encompass sending a petition for review by fax or by express mail. The ARB in Durham v. Tennessee Valley Authority, ARB No. 06-038, ALJ No. 2006-CAA-1 (ARB Feb. 27, 2006), rejected the Complainant's argument implying that his untimely appeal should be excused because OALJ allegedly does not permit service by fax. The Board observed that it does not have such a rule and that its fax number is prominently displayed on its website for "facsimile filings." See www.dol.gov/arb/contact.htm.

[Editor's note: The OALJ Rules of Practice and Procedure do not prohibit filings by fax where permitted by statute or regulation or where permission is obtained from the presiding ALJ. 29 C.F.R. § 18.3(f)(1). Similarly, those rules permit service by fax where explicitly permitted by statute or regulation or where the receiving party consents. 29 C.F.R. § 18.3(f)(2).]

[Nuclear and Environmental Whistleblower Digest VIII B 1 b]
TIMELINESS OF APPEAL; ABSENCE OF NOTICE OF APPEAL RIGHTS IN ALJ DECISION INSUFFICIENT TO ESTABLISH EQUITABLE GROUNDS FOR EXCUSING UNTIMELY APPEAL WHERE COMPLAINANT HAD PRIOR NOTICE OF APPEAL PROCEDURE FROM EARLIER CASE

In Santamaria v. U.S. Environmental Protection Agency, ARB No. 05-023, ALJ No. 2004-ERA-25 (ARB Mar. 31, 2005), the Complainant had previously appealed the decision of the ALJ in an earlier case. The ALJ had included a notice of appeal rights in the earlier decision. When issuing his recommended decision in the instant case, the ALJ did not include a notice of appeal rights. The Complainant failed to file a timely appeal. The ARB found that equitable considerations did not excuse the untimely appeal because "[t]he fact that a party did not know that the law required him to timely file a petition will generally not support a finding of entitlement to equitable tolling." (citation omitted). Moreover, the Board found that, in this case, the Complainant knew, or should have known that he was required to file a timely appeal because he had personally been served with the ALJ's decision in the earlier case, as well as several ARB orders.

[Nuclear and Environmental Whistleblower Digest VIII B 1 b]
TIMELINESS OF PETITION FOR ARB REVIEW; EVEN IF THE ALJ'S DECISION IS SHOWN NOT TO HAVE BEEN MAILED ON THE DATE SHOWN ON THE FACE OF THE DECISION, A PETITIONER IS REQUIRED TO FILE THE PETITION FOR REVIEW DILIGENTLY UPON RECEIPT OF THE DECISION

In Immanuel v. C&D Concrete, ARB No. 05-006, 2003-CAA-18 (ARB Jan. 27, 2005), the ALJ's recommended decision was dated September 10, 2004 on the first page of the decision and on the service sheet, but the Complainant averred that the copy sent to his counsel bore the metered postmark of September 24, 2004. The Complainant's counsel averred that he received the ALJ's decision on September 30, 2004. The Complainant filed his petition for ARB review on October 15, 2004. The ARB issued an Order to Show Cause why the appeal should not be dismissed as untimely. The Board conceded that it would be inequitable to calculate the 10 day period for appealing from the date shown on the ALJ's decision as it was not mailed until later. The Board nevertheless dismissed the petition because it was not persuaded that the Complainant's counsel diligently pursued the appeal once he received the decision, but unilaterally decided that he had ten business days from the date he received the ALJ's decision to file the petition for review. The Board found that the petition was due 10 days following the metered postmark.

[Nuclear and Environmental Whistleblower Digest VIII B 1 b]
TIMELINESS OF PETITION FOR ARB REVIEW; AMIGUOUS CIRCUMSTANCES INSUFFICIENT TO ESTABLISH EQUITABLE GROUNDS FOR RELIEF FROM AN UNTIMELY FILING

In Greene v. U.S. Environmental Protection Agency, ARB No. 03-094, ALJ No. 2002-SWD-1 (ARB June 14, 2005), the ALJ issued a recommended order granting summary judgment in favor of the Respondent, and attached thereto a certificate of service attesting that the Chief Docket Clerk had sent a copy of that document to the Complainant. The address shown on the certificate was the Complainant's correct address. The applicable regulation provides a ten-business day limitations period for filing a petition for review with the ARB; the Complainant did not file a petition until several months after the issuance of the ALJ's recommended decision, alleging that she had not learned of the ALJ's decision until her attorney saw it on the Internet. The ARB, therefore, considered whether equitable considerations applied to excuse the untimely petition for review. The ARB, noting that the Complainant was a retired ALJ who presumably would chose words in a declaration carefully, found that the Complainant only alleged that she did not see the ALJ's decision until it was sent to her by her attorney; she did not swear that the decision was never delivered to her post office box. In this regard, the Board noted that the Respondent had essentially stated that it would concede that the appeal was timely if the Complainant would submit an unambiguous affidavit swearing under oath that she diligently checked her mail and the recommended decision was never delivered to her post office box. The Board found that the Complainant had not established that exceptional circumstances precluded her from timely filing a petition for review.

[Nuclear & Environmental Whistleblower Digest VIII B 1 b]
REQUEST FOR ARB REVIEW; EQUITABLE GROUNDS FOR EXCUSING UNTIMELY FILING

In Dumaw v. International Brotherhood of Teamsters, Local 690, ARB No. 02 099, ALJ No. 2001 ERA 6 (ARB Aug. 27, 2002), the ARB found that a busy schedule and an ankle injury by one of Complainant's attorneys did not present equitable grounds for waiving the time period for filing a petition for review before the ARB. The ARB observed in this regard that "all that was required of counsel to protect Dumaw's right to appeal was a one line letter indicating his intent to appeal the ALJ's Recommended Decision and Order." To the extent that the failure to file timely may have been based on Counsels' simply overlooking the due date, the ARB noted that it had recently held that clerical errors in docketing due dates do not constitute "extraordinary circumstances." Citing Howlett v. Northeast Utilities/Northeast Nuclear Energy Corp., ARB No. 99 044, ALJ No. 1999 ERA 1 (ARB Mar. 13, 2001). The ARB found that, ultimately, clients are responsible for the omissions of their representatives.

[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 b]
TIMELINESS OF PETITION FOR ARB REVIEW

In Garcia v. Wantz Equipment, ARB No. 99-109, ALJ No. 1999-CAA-11 (ARB Feb. 8, 2000), the ALJ issued his recommended decision on May 17, 1999; Complainant received the decision on May 23, 1999; Complainant dated his handwritten Petition for Review May 28, 1999; the ARB received the petition on June 10, 1999. By regulation, Complainant's petition should have been received by June 1, 1999 -- the tenth business day after the date of the recommended decision. Later, Complainant requested an "extension of time" to file his petition.

The ARB noted that is has held that it has the authority to waive service and filing requirements provided no prejudice to other parties is shown. In accepting Complainant's petition for review, the ARB took into account the following factors:

We note first that we are dealing here with a very short time limit for perfecting an appeal, one which would make it difficult even for a party represented by counsel to make a carefully considered decision to appeal an ALJ decision. Garcia was acting pro se and also claims he was housebound with a disability, could not get to the Post Office, and could not afford to send his Petition by facsimile or ship it by United Parcel Service. Garcia only received a copy of the ALJ decision on May 23, 1999, and his Petition for Review is dated May 28, 1999. The respondent, Wantz Equipment, has not filed any pleading opposing acceptance of the Petition for Review and nothing in the record shows that it has been prejudiced in any way by the slightly delayed filing of the Petition.

[Nuclear & Environmental Digest VIII B 1 b]
REQUEST FOR ARB REVIEW; EFFECT OF FAILURE TO SERVE CHIEF ADMINISTRATIVE LAW JUDGE

In Pawlowski v. Hewlett-Packard Co., 1997-TSC-3 (ARB Sept. 15, 1999), the Respondent timely filed a petition for review with the ARB of the ALJ's recommended decision, but failed to serve the Chief ALJ until after Complainant filed a motion to dismiss based on the lack of service on the Chief ALJ.

The ARB found that the governing regulation at 29 C.F.R. § 24.8, while presuming that the petition for review be filed on the ARB and the Chief ALJ simultaneously, does not so require. Further, the ARB noted that there was no showing of prejudice by Complainant by the failure to serve the Chief ALJ within the regulatory time period for filing ARB review.

[Nuclear & Environmental Digest VIII B 1 b]
PETITION FOR REVIEW BY ARB; ERRONEOUS FILING OF PETITION WITH CHIEF ADMINISTRATIVE LAW JUDGE; EQUITABLE TOLLING

In Gutierrez v. Regents of the University of California, ARB No. 99-116, ALJ No. 1998-ERA-19 (ARB Nov. 8, 1999), the ALJ issued a recommended decision on the merits on June 9, 1999, and a recommended decision on attorney's fees on August 16, 1999. When preparing its petition for review by the ARB on the attorney's fee decision, Respondent realized that it had erroneously directed its earlier petition for review of the decision on the merits to the Chief ALJ.

The ARB applied principles of equitable tolling to accept the untimely petition for review on the merits decision on the merits based on the ground of timely appeal in the wrong forum. The ARB observed that Respondent put Complainant on notice that it intended to file a petition for review with the ARB within the ten-day period provided in 29 C.F.R. § 24.8 when it erroneously filed its petition with the Chief ALJ; that Complainant did not demonstrate that he was prejudiced by Respondent's error; and that the case did not involve a stale claim, nor a petitioner who has "slept on [its] rights." See Burnett v. New York Railroad Co., 380 U.S. 424, 428 (1965).

[Nuclear & Environmental Digest VIII B 1 b]
REQUEST FOR ARB REVIEW; LATE FILING NOT JURISDICTIONAL BAR; FILING ACCEPTED WHERE RESPONDENT DID NOT DEMONSTRATE THAT IT WAS PREJUDICED BY THE LATE FILING AND COMPLAINANT DID NOT SLEEP ON HIS RIGHTS

In Duncan v. Sacramento Metropolitan Air Quality Management District, 1997-CAA-12 (ARB Sept. 1, 1999), Complainant filed a request for review of the presiding ALJ's recommended decision within 10 business days of the date of the recommended decision, but erroneously filed it with the Chief ALJ. Under the governing regulation at 29 C.F.R.§ 24.8, the petition for review should have been filed directly with the ARB. The Chief ALJ issued a notice of improper filing, and within 10 business days thereafter, the Complainant filed a petition for review with the ARB.

The ARB found that the time period stated in section 24.8 was not jurisdictional, but instead procedural in nature, comparable to a statute of limitations that may be tolled for equitable reasons. Thus, in the instant case where Respondent did not demonstrate that it was prejudiced by the late filing, the claim was not stale, and Complainant did not sleep on his rights, the ARB accepted the petition for review.

[Editor's note: The ARB made a similar ruling in a Davis-Bacon Act case, Superior Paving & Materials, Inc., ARB No. 99-065, ALJ No. 1998-DBA-11 (ARB Sept. 3, 1999) (ARB ruled that 29 C.F.R. 6.3(b), which permits an additional five days for filings by mail before OALJ, did not apply to filings with the ARB under 29 C.F.R. § 6.34, but also ruled that the Prime Contractor's petition for review of the ALJ's decision would be accepted because section 6.34 is not jurisdictional, the Deputy Commissioner did not demonstrate prejudice, the Prime Contractor's error was only three days late based on its incorrect reading of the regulations, and there was no allegation that it had previously failed to comply with deadlines assigned by the ALJ)].

VIII B 1 b Failure to prosecute based on mental incompetence; limits on Department's need to be accommodating

In Guity v. Tennessee Valley Authority, 90-ERA-10 (Sec'y May 3, 1995), the complaint had been dismissed without prejudice based on the Complainant's failure to prosecute as a result of mental incompetence. The Complainant had failed to take any action for three years. The dismissal was with leave to file a motion to reopen within 30 days of the treating psychologist's declaration that the Complainant was competent to litigate the case, with a one year limitation on the opportunity to file such a motion. Several additional conditions were required to be included in the motion.

Just prior to the end of the one year period, the Complainant did file such a motion with statements of a treating psychologist and a psychiatrist. The motion and underlying affidavits requested that the matter be reopened and the Complainant be permitted to proceed at a cautious or slow pace. The Secretary accepted the affidavits as demonstrating that the Complainant is competent to proceed.

The Secretary, however, noted that more than five years had passed since the Complainant filed his complaint, and that the Department had been very accommodating in awaiting Complainant's prosecution of the complaint. Further delay could not be permitted, however, because "[t]he rights of a respondent to have claims against it resolved in a timely fashion must also be considered." Thus, on remand, the scheduling of the case was directed to be "like any other ERA case." The Complainant was not to "receive any further significant postpostments or enlargements of time based upon his emotional or psychological state." If the Complainant became unable to prosecute because of his emotional or psychological state, the Secretary directed the ALJ who is assigned on remand to issue a recommended decision and order dismissing the complaint with prejudice. Citing Mack v. Malone and Hyde, Inc., 1994 U.S. App. LEXIS 8131, No. 93-5814 (6th Cir. Apr. 15, 1994) (affirming District Court's dismissal for failure to prosecute Title VII case after seven years, notwithstanding plaintiff's mental illness).

VIII B 1 c

See VIII A 2 a in regard to whether ALJ decisions are recommended or final.

VII B 1 c Entry of final order by Director of OAA

In Parker v. City of Merrill, 94-WPC-6 (OAA May 1, 1995), the Acting Director, Office of Administrative Appeals signed an order dismissing a complaint in which the Complainant had withdrawn the complaint upon admitting that he had no defense to the finding that the complaint was not timely. The order cites as authority the Secretary's March 1990 order, published at 55 Fed. Reg. 13,250 (Apr. 9, 1990).

[Editor's note: Although it makes sense administratively for the OAA Director to enter this type of order, the Secretary's Order 3-90 at item 3.b. indicates that final agency decisions are issued by the Secretary notwithstanding the delegation of authority to the Director of OAA to rule on procedural motions.]

VIII B 1 d SWDA -- Release of petroleum within jurisdiction of Secretary

The Secretary has jurisdiction over a whistleblower complaint filed under the SWDA where the complaint involves a release or suspected release of petroleum from an underground storage tank. See 42 U.S.C. § 6971; 29 C.F.R. § 24.1 (1990); see also 42 U.S.C. §§ 6916(f), 6991 (1988); 40 C.F.R. §§ 280.10, 280.12, 280.50 (1989).

Monteer v. Casey's General Stores, Inc., 88-SWD-1 (Sec'y Feb. 27, 1991).

[Nuclear and Environmental Whistleblower Digest VIII B 1 d]
CREATION OF THE ARB DID NOT VIOLATE THE APPOINTMENTS CLAUSE OF THE CONSTITUTION

In Willy v. Administrative Review Board, USDOL, No. 04-60347 (6th Cir. Aug. 24, 2005) (case below ARB No. 97-107, 1985-CAA-1), the Complainant contended that the creation of the Administrative Review Board (ARB) by the Secretary of Labor violated the Appointments Clause of the Constitution. The Fifth Circuit rejected this contention, holding that "the Secretary possesses the requisite congressional authority to appoint members to the ARB to issue final agency decisions" under the Reorganization Plan No. 6 of 1950 and 5 U.S.C. § 301. Slip op. at 15.

[Nuclear and Environmental Whistleblower Digest VIII B 1 d]
INJUNCTION PREVENTING DOL FROM ADJUDICATING WHISTLEBLOWER CLAIM WITHOUT THE INTERVENTION OF THE SECRETARY BASED ON STATE SOVEREIGN IMMUNITY DEFENSE DOES NOT DEPRIVE ARB OF AUTHORITY TO CONSIDER ISSUES NOT DECIDED IN FEDERAL COURT DECISIONS

In Taylor v. Rhode Island Dept. of Environmental Management, ARB No. 04-166, ALJ No. 2001-SWD-1 (ARB Nov. 29, 2004), the federal decisions in Rhode Island Dep't of Envtl. Mgmt. v. United States, 304 F.3d 31 (1st Cir. 2002), and Rhode Island v. United States, 301 F. Supp. 2d 151 (D. R.I. 2004), had enjoined, based on state sovereign immunity, the Department of Labor's adjudication of the complaint, as well as three others initiated and pursued by the Rhode Island Department of Environmental Management employees. The ALJ had dismissed the complaint on sovereign immunity grounds, and the Complainant petitioned for ARB review. Rhode Island argued that the Board had no authority to do anything but reject the Complainant's petition for review. The Board rejected this argument, finding that it had authority to consider arguments made by the Complainant that were based on developments in the processing of her complaint that the federal courts had not examined.

[Nuclear & Environmental Whistleblower Digest VIII B 1 d]
AUTHORITY OF ARB TO RECONSIDER ITS DECISIONS

In Ruud v. USDOL, 80 Fed Appx 12, No. 02 71742 (9th Cir. Oct. 22, 2003) (unpublished) (case below ARB No. 99 023, ALJ No. 1988 ERA 33), the Ninth Circuit held that the law of the case doctrine did not prevent the ARB from reconsidering its prior decision to disapprove the settlement in the case because the agency's own precedents permitted such reconsideration if the previous decision was erroneous.

[Nuclear & Environmental Whistleblower Digest VIII B 1 d]
JURISDICTION TO DETERMINE JURISDICTION

See Migliore v. Rhode Island Dept. of Environmental Management, ARB No. 99 118, ALJ Nos. 1998 SWD 3, 1999 SWD 1 and 2 (ARB July 11, 2003), casenoted at VIII A 4.

[Nuclear & Environmental Whistleblower Digest VIII B 1 d]
ARB REVIEW AUTHORITY; SUBJECT MATTER JURISDICTION FOIA DISPUTES

In McQuade v. Oak Ridge Operations Office, ARB No. 02 087, ALJ Nos. 1999 CAA 8 to 10 (ARB Oct. 18, 2002), Complainant's former counsel filed an appeal of the ALJ's supplemental decision dismissing an application for attorneys' fees. Counsel missed the deadline for filing a brief with the ARB. In response to an order to show cause, Counsel alleged, inter alia, that he needed additional time to file the response because OALJ had not made a transcript available which Counsel alleged would support his case for an award of fees, and requested that the ARB order the Chief ALJ to produce the transcript.

The ARB dismissed the appeal for counsel's failure to explain why he did not timely file the brief initially. Thus, the ARB considered the transcript matter moot. Nonetheless, it noted that the reason that the transcript had not been produced appeared to be a dispute over whether Counsel was entitled to a fee waiver under FOIA, and that appeals of such denials do not fall within the coverage of the whistleblower acts under which the Complainants filed the action.

[Nuclear & Environmental Whistleblower Digest VIII B 1 d]
SUBJECT MATTER JURISDICTION; JURISDICTION TO DETERMINE JURISDICTION; OBLIGATION OF ADJUDICATOR TO MAKE INQUIRIES IF JURISDICTION IN DOUBT

An adjudicator is obligated to inquire sua sponte whenever a doubt arises as to the existence of its subject matter jurisdiction. Courts have jurisdiction to determine their jurisdiction, even if it is determined that it does not have jurisdiction over the merits. See Pastor v. Dept. of Veterans Affairs, ARB No. 99 071, ALJ No. 1999 ERA 11 (ARB May 30, 2003).

[Nuclear & Environmental Whistleblower Digest VIII B 1 d]
JURISDICTION; DOL AUTHORITY TO DETERMINE WHETHER BANKRUPTCY STAY APPLIES

See Davis v. United Airlines, ARB No. 02 105, ALJ No. 2001 AIR 5 (ARB May 30, 2003) (DOL has authority to determine whether it will stay case when presented with a claim that the bankruptcy automatic stay applies).

[Nuclear & Environmental Digest VIII B 1 d]
ENFORCEMENT OF SECRETARY'S ORDER

In McCollum v. University of Oklahoma College of Pharmacy, 2001-ERA-11 (ALJ Apr. 5, 2001), Complainant sought enforcement of a final Secretary's Order on the ground, inter alia, that Respondent did not reinstate him to his prior position or provide back pay. The ALJ held that jurisdiction over enforcement of a Secretary's Order does not lie with the Office of Administrative Law Judges, but rather with the United States District Court in the district in which the violation occurred. See 42 U.S.C. §§ 5851(d), 5851(e).

[Nuclear & Environmental Digest VIII B 1 d]
SOVEREIGN IMMUNITY; ARB RAISES ISSUE SUA SPONTE

In Pastor v. Veterans Affairs Medical Center, ARB No. 99-071, 1999-ERA-11 (ARB Mar. 1, 2001), the case was before the ARB based on the ALJ's recommendation of dismissal based on Complainant's failure to file a timely complaint. In an Order Directing Additional Briefing, the ARB noted that Respondent is an agency of the federal government, and that sovereign immunity has not been waived under the ERA whistleblower provision. Even though Respondent had not raised the issue, the ARB found that sovereign immunity is jurisdictional in nature, and therefore appropriate for the ARB to raise sua sponte. Thus, the ARB ordered the parties to brief the issue.

[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 VIII B 1 d]
RECONSIDERATION; REQUEST TO REFER MATTER TO SECRETARY OF LABOR

In Smith v. Esicorp, Inc., 1993-ERA-16 (ARB Oct. 1, 1998), Complainant requested that the ARB vacate and reconsider its final decision in the matter, or refer the case to the Secretary for a "policy decision" on the amount of damages. In the Final Decision, the ARB had reduced the ALJ's award of $100,000 in compensatory damages to $20,000.

The ARB denied Complainant's motion, finding that he had not presented any new arguments or reasons to vacate the Final Decision. In addition, the ARB denied Complainant's request that the matter be referred to the Secretary because the Secretary had delegated her decision-making authority in cases arising under the Energy Reorganization Act of 1974 to the ARB. Secretary's Order No. 2-96, paragraph 4.

[Nuclear & Environmental Digest VIII B 1 d]
LEGITIMACY OF THE ARB

In Holtzclaw v. Secretary of Labor, No. 97-3347 (6th Cir. Jan. 15, 1999) (unpublished) (available at 1999 WL 68745) (case below 1995-CAA-7), the court rejected the contention that the ARB had been created in violation of the Appointments Clause and the Presentment Clause of the federal Constitution, citing Varnadore v. Secretary of Labor, 141 F.3d 625, 632 (6th Cir. 1998).

[N/E Digest VIII B 1 d]
AUTHORITY OF ADMINISTRATIVE REVIEW BOARD

In Varnadore v. Secretary of Labor, Nos. 96-3888/4389 (6th Cir. Apr. 6, 1998) (case below 92-CAA-2 et al.), Complainant argued that the Administrative Review (ARB) is an unauthorized decisionmaking body, and therefore its decisions in the matter must be vacated. Complainant argued that the creation of the ARB was a major substantive change, requiring either congressional approval or notice-and-comment rulemaking, citing the Appointments Clause and the Presentment Clause of the Constitution.

The Sixth Circuit, citing the composition and functions of the ARB, concluded that the members of the ARB are, at most, the type of "inferior" officers that the Appointments Clause allows the heads of departments, such as the Secretary of Labor to appoint. The court also found that because "the establishment of the ARB and delegation to it of final decisionmaking responsibility is authorized under the Appointments Clause and federal law, it is plain that the Secretary has not usurped any legislative function in violation of the Constitution." The court did not discuss notice and comment rulemaking.

ADMINISTRATIVE REVIEW BOARD; VALIDITY OF CREATION
[N/E Digest VIII B 1 d]

In Complainant's petition for review by the 6th Circuit of the Board's decision in Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), petition filed Varnadore v. Secretary of Labor, No. 96-3345 (6th Cir. Aug. 12, 1996), Complainant attacks the ARB's decision on a number of grounds related to validity of the Board's creation, including the absence of notice and comment rulemaking or Congressional authorization.

ADMINISTRATIVE REVIEW BOARD; ESTABLISHMENT
[N/E Digest VIII B 1 d]

Effective May 3, 1996, the Administrative Review Board replaced, inter alia, the Office of Administrative Appeals. Secretary's Order 2- 96, 61 Fed. Reg. 19978 (published in the Federal Register on May 3, 1996, but originally issued on April 17, 1996); Final Rule, Establishment of the Administrative Review Board, 61 Fed. Reg. 19982 (May 3, 1996). The Administrative Review Board has been delegated the authority to issue final agency decisions in cases in which the Office of Administrative Appeals only provided assistance and advice. The Administrative Review Board's address is:

Administrative Review Board
United States Department of Labor
200 Constitution Ave, NW
Washington, DC 20210
Phone: (202) 693-6200

HOSTILE WORK ENVIRONMENT; SECRETARY'S ADAPTATION OF THIRD CIRCUIT TEST; RESERVATION OF RULING WHEN RELATED CASES MAY BE RELEVANT TO OVERALL PICTURE
[N/E Digest VIII B 1 d and XIII C]

In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5 and 93-CAA-1 (Sec'y Jan. 26, 1996), the Secretary detailed his view of the law concerning hostile work environment. The Secretary found that the principles stated in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) and Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993) are equally applicable to environmental whistleblower cases, noting that the Fourth Circuit had so held in an ERA case, English v. General Electric Co., 858 F.2d 957 (4th Cir. 1988). The Secretary then cited a Third Circuit decision, West v. Philadelphia Electric Co., 45 F.3d 744 (3d Cir. 1995), in regard to the necessary elements of proof in a hostile work environment case:

(1) the plaintiff suffered intentional discrimination because of his or her membership in the protected class;
(2) the discrimination was pervasive and regular;
(3) the discrimination detrimentally affected the plaintiff;
(4) the discrimination would have detrimentally affected a reasonable person of the same protected class in that position; and
(5) the existence of respondeat superior liability.

The Secretary then endeavored to tailor these elements to a whistleblower claim alleging hostile work environment. The first element is modified to become an inquiry into whether the complainant engaged in protected activity and whether he or she suffered intentional retaliation as a result.

In regard to the element of "pervasive and regular" discrimination, the Secretary noted that frequency and severity are two factors that may be weighed, and cited Meritor Savings Bank and Harris, and a 6th Circuit and a 7th Circuit decision as guides. The Secretary, however, declined to make a ruling on this element because the Complainant in the case sub judice had filed several subsequent complaints about additional alleged acts of retaliation. Those cases were still pending before the Secretary, and the Secretary determined that he should consider the cases together, citing decisions in which courts had cautioned against considering incidents of discrimination in isolation and stressed the value of an overall picture.

VIII B 1 d Petition for review in court of appeals divests Secretary of jurisdiction

In Wells v. Kansas Gas & Electric Co., 85-ERA- 22 (Sec'y June 28, 1991) (order), the Secretary found that the filing of a petition for review in the court of appeals divested her of jurisdiction, and therefore motions requesting a hearing on remedial issues and for stay were denied.

VIII B 1 d Failure to prevent continuing discrimination (Secretary's enforcement powers)

Where a psychologist administering a psychological test as part of a security clearance procedure was supplied with the same inaccurate or unexplained background report on Complainant that called into question Complainant's veracity (which in a prior whistleblowing complaint was found proof of discrimination), and was not made aware of the circumstances of Complainant's prior whistleblowing complaint (and ultimate reinstatement) which could have explained some of Complainant's defensiveness about the psychological test, the Secretary found that Respondent should not benefit in its defense from the knowing submission of this inaccurate information.
Respondent had used the psychologist's recommendation to discharge Complainant only three months after being reinstated as the result of a prior ERA employee protection complaint. The Secretary held that Respondent's psychological evaluation of Complainant was not valid in the context of Respondent's obligation under the Secretary's order in Case Number 83-ERA-12 to reinstate Complainant and expunge his records.

Respondent had the right to require Complainant to submit to any personnel procedures required of other similarly situated employ- ees, but also had the obligation, under the prior decision, to "take affirmative action to abate the violation" and not permit the same error which led to the first violation to infect those procedures.

The Secretary found that Respondent violated the ERA when it failed to comply with the Secretary's order in 83-ERA-12. [citations omitted (cases indicating an agency's or arbitrator's authority to enforce prior orders)]

Wells v. Kansas Gas & Electric Co., 85-ERA-22 (Sec'y Mar. 21, 1991).

[Editor's note: This decision was appealed. The appeal was dismissed, No. 91-9526 (10th Cir. Aug. 23, 1991). I do not have a copy of the order of dismissal.]

[Nuclear and Environmental Whistleblower Digest VIII B 2]
ARB REVIEW OF QUESTIONS OF FACT; NEW REGULATIONS PROVIDE FOR SUBSTANTIAL EVIDENCE REVIEW

In Pierce v. United States Enrichment Corp., ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), when the parties appealed and filed their briefs with the ARB, the ARB reviewed questions of fact under the ERA de novo; thereafter DOL published a new regulation calling for substantial evidence review. Because neither party addressed the standard of review in its briefs or in a supplemental brief, the ARB stated that it assumed that neither party considered the change to be material, and that in any event, applying either standard of review, it concluded that the Respondent violated the ERA whistleblower provision.

[Nuclear and Environmental Whistleblower Digest VIII B 2]
SCOPE OF ARB AUTHORITY; DISTINCTION BETWEEN INVALIDATING A REGULATION AND INTERPRETING A REGULATION

In Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., ARB No. 04-101, ALJ No. 2004-ERA-9 (ARB Oct. 31, 2005), the ARB held that its delegation of authority prohibits invalidating regulations or granting exemptions thereto. If a rule was promulgated by notice and comment, it can only be repealed by notice and comment and not through agency adjudication. However, interpretation of the meaning of a regulation -- how the regulatory text applies to the facts of a case -- is emphatically the responsibility of the ARB.

[Nuclear and Environmental Digest VIII B 2]
SCOPE OF APPELLATE REVIEW; FAILURE OF RESPONDENT TO CROSS-PETITION ON ISSUE OF SOVEREIGN IMMUNITY

In Overall v. Tennessee Valley Authority, ARB No. 04-073, ALJ No. 1999-ERA-25 (ARB July 16, 2007), the ARB rejected an argument from the Complainant that the Respondent could not raise a sovereign immunity issue on appeal because it had not filed a cross-petition for a review of the ALJ's holding on this issue. Rather, the ARB stated that it is obligated to inquiry sua sponte whenever a doubt about subject matter jurisdiction arises.

[Nuclear and Environmental Digest VIII B 2]
SCOPE OF APPELLATE REVIEW; TRIAL OF ISSUES BY CONSENT

In Overall v. Tennessee Valley Authority, ARB No. 04-073, ALJ No. 1999-ERA-25 (ARB July 16, 2007), the Respondent argued that the Complainant's discrete adverse action claims could not be asserted on appeal because they were not contained in his complaint, which alleged only that the Respondent subjected him to a hostile work environment. The ARB, however, found that the discrete adverse action claims had been tried before the ALJ by consent of the parties, citing 29 C.F.R. § 18.5(e).

[Nuclear and Environment Digest VIII B 2 a]
ALJ'S CREDIBILTY DETERMINATIONS; COURT AFFIRMS ARB'S CONTRARY CONCLUSIONS ON THE MERITS OF THE CASE WHERE THOSE CONCLUSIONS WERE SUPPORTED BY SUBSTANTIAL EVIDENCE

In Patrickson v. USDOL, No. 07-4574 (Dec. 18, 2008) (unpublished) (case below ARB Nos. 05-069, 05-070, ALJ No. 2003-ERA-22), the Petitioner ("Complainant") argued on appeal that the ARB's rejection of certain ALJ credibility assessments detracted from the weight of evidence underpinning the ARB's determination. The ALJ had determined, relying largely on the Complainant's testimony, that bi-weekly meetings that the Complainant had been required to attend were sufficiently hostile to constitute adverse employment actions. The ARB found to the contrary, having listened to recordings of those meetings made by the Complainant, which the ALJ had apparently not done. The Second Circuit found that the ARB's assessment of the actual words and atmosphere of the meetings reasonably permitted it to conclude that they were not sufficiently hostile to demonstrate an adverse employment action. The court also found that the ARB's finding that the Complainant had failed to establish pretext was supported by substantial evidence notwithstanding the ALJ's contrary credibility assessments � notably testimony from a manager regarding numerous deficiencies in the Complainant's performance, and the institution of a performance-improvement plan prior to receipt of notice of the Complainant's protected activity.

[Nuclear and Environmental Digest VIII B 2 a]
ARB STANDARD OF REVIEW ON QUESTIONS OF FACT; CASE THAT WAS APPEALED PRIOR TO AUGUST 2007 AMENDMENTS TO PART 24

In Redweik v. Shell Exploration and Production Co, ARB No. 05-052, 2004-SWD-2 (ARB Dec. 21, 2007), at the time that the Complainant appealed the ALJ's decision and the parties filed their briefs with the ARB, the ARB reviewed questions of fact de novo. By the time the ARB rendered its decision, however, the regulation at 29 C.F.R. § 24.110(b) had been amended to provide for a substantial evidence standard of review. See 72 Fed. Reg. 44,956 (Aug. 10, 2007). The Board, however, did not rule on whether it would apply the de novo or substantial evidence standard of review because in the instant case applying either standard lead to the conclusion that the Respondent had not violated the whistleblower provisions of the various environmental laws specified in the complaint.

VIII B 2 a Secretary not bound by ALJ's credibility determination

In Simon v. Simmons Industries, Inc., 87-TSC-2 (Sec'y Apr. 4, 1994), the Secretary stated that he is not bound by the credibility determinations of the ALJ, although the ALJ's findings must be considered in light of "the consistency and inherent probability of testimony," Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951), and are entitled to weight because the ALJ "'sees the witnesses and hears them testify . . . .'" Pogue v. U.S. Dept. of Labor, 940 F.2d 1287, 1289 (quoting NLRB v. Walter Mfg. Co., 269 U.S. 404, 408 ((1962)).

[Nuclear and Environmental Digest VIII B 2 a]
CREDIBILITY DETERMINATION; ARB LOGICALLY QUESTIONED ALJ'S SWEEPING CREDIBLITY FINDING IN FAVOR OF THE COMPLAINANT WHERE 50 OTHER WITNESSES TESTIFIED

In Hall v. United States Dept. of Labor, Administrative Review Board, No. 05-9512 (10th Cir. Feb. 13, 2007), the ALJ found that the Complainant took "good notes" and was an "honest, conscientious and dedicated individual," and therefore generally credited his testimony. On appeal, the Complainant's objected to the ARB's rejection of the ALJ's across-the-board credibility determination in favor of the Complainant. The court found that it was logical for the ARB to question the ALJ's sweeping credibility determination given that the ALJ had only evaluated the Complainant's credibility, despite the fact that 50 witnesses testified, 40 of whom testified against the Complainant.

[Nuclear and Environmental Whistleblower Digest VIII B 2 a]
CREDIBILITY DETERMINATIONS; BROAD DEFERENCE TO ALL OF ALJ'S FINDINGS NOT MANDATED, ESPECIALLY WHEN CASE DID NOT TURN ON WITNESS CREDIBILITY

In Jones v. USDOL, No. 04-3729 (6th Cir. Sept. 8, 2005) (case below ARB Nos. 02-093 and 03-010, ALJ No. 2001-ERA-21), the ARB had reversed the ALJ's finding in favor of the Complainant. On review, the court of appeals found that the ALJ's credibility evaluations of the only two witnesses to testify (the Complainant and his former manager) did not mandate broad deference to all of the ALJ's findings, especially where the case did not turn on witness credibility alone and where the ALJ'S credibility rulings did not purport to address all of the witnesses' testimony or dispose of all of the issues in the case (the ALJ had only found that the Complainant was credible in having been "hurt, disappointed [and] devastated"). The court therefore found that the ARB acted within its authority in drawing its own conclusions based on its independent review of the evidence.

[Nuclear and Environmental Whistleblower Digest VIII B 2 a]
ALJ'S CREDIBILITY DETERMINATIONS; ARB NOT REQUIRED TO GIVE SUBSTANTIAL WEIGHT TO ALJ'S DETERMINATION WHERE IT WAS NOT GROUNDED IN DEMEANOR

In Jones v. United States Enrichment Corp., ARB Nos. 02-093 and 03-010, ALJ No. 2001-ERA-21 (ARB Apr. 30, 2004), the ARB rejected the Complainant's contention that it was required to give substantial weight to his testimony based on the ALJ's finding that the Complainant was more credible that the Complainant's manager, where the ALJ's credibility determination was not grounded in demeanor but on the ALJ's finding that the manager was wrongly blaming the Complainant for the manger's own managerial deficiencies.

[Nuclear & Environmental Whistleblower Digest VIII B 2]
ARB DOES NOT HAVE THE AUTHORITY TO RULE ON THE VALIDITY OF REGULATIONS

The ARB is bound by the regulations duly promulgated by the Department of Labor, and is not authorized to rule on the validity of those regulations. Secretary's Order No. 1 2002, 67 Fed. Reg. 64,272, 64,273 (Oct. 17, 2002). In re Slavin, ARB No. 02 109, ALJ No. 2002 SWD 1 (ARB June 30, 2003) (ARB sitting by special designation on appeal from disqualification) (challenge to validity of disqualification of counsel provision at 29 C.F.R. § 18.34).

[Nuclear & Environmental Digest VIII B 2 a]
REVIEW OF DEMEANOR-BASED CREDIBILITY DETERMINATIONS OF ALJ

The ARB reviews ALJ decisions under the ERA de novo, but accords special weight to an ALJ's demeanor-based credibility determinations. Phillips v. Stanley Smith Security, Inc., ARB No. 98-020, ALJ No. 1996-ERA-30 (ARB Jan. 31, 2001).

[Nuclear & Environmental Whistleblower Digest VIII B 2 a]
CREDIBILITY DETERMINATIONS; ARB WILL NOT DISTURB ABSENT SOME FLAW OR SIGNIFICANT OMISSION IN ALJ'S EXPLANATION

In Moder v. Village of Jackson, Wisconsin, ARB Nos. 01 095 and 02 039, ALJ No. 2000 WPC 5 (ARB June 30, 2003), the ARB affirmed the ALJ's credibility determinations, observing that the ALJ observed the demeanor of the witnesses, lived with the case from its inception, and did not believe the testimony of Respondent's witnesses. The Board stated that "[a]bsent some flaw or significant omission in the ALJ's explanation for not believing this testimony, we have no reason to disturb the ALJ's conclusions." Slip op. at 8. The Board noted that the ALJ had explained in careful detail the extent to which he rejected this testimony based on the demeanor of the witnesses, and with equal care and detail, noted inconsistencies between this evidence and other, more plausible evidence. The Board noted that the ALJ explained how he analyzed conflicting evidence to reach the conclusions he did, and that Respondent's objections did not identify flaws in his logic or failure to consider all the evidence.

[Nuclear & Environmental Digest VIII B 2 a]
STANDARD OF REVIEW; ARB NOT BOUND BY ALJ'S FINDINGS OR CONCLUSIONS OF LAW

The following excerpt is from Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No. 1997-CAA-2 and 9 (ARB Feb. 29, 2000) (footnote omitted):

The Board has jurisdiction to decide appeals from recommended decisions of Administrative Law Judges arising under the environmental acts. As the designee of the Secretary of Labor,13 the Board's review of the ALJ's decision is controlled by 5 U.S.C. §557 (1994) and 29 C.F.R. §24.8 (1999). Pursuant to the Administrative Procedure Act, in reviewing the ALJ's initial decision, the Board acts with "all the powers [the Secretary] would have in making the initial decision . . . ." 5 U.S.C. §557(b), quoted in Goldstein v. Ebasco Constructors, Inc., No. 86-ERA-36, Sec'y D&O (April 7, 1992). Accordingly, the Board is not bound by either the ALJ's findings or his conclusions of law, but reviews both de novo. See Starrett v. Special Counsel, 792 F.2d 1246, 1252 (4th Cir. 1986) (under administrative law principles, agency or board is free to either adopt or reject ALJ's findings and conclusions of law).
In making its decision, whether following an initial or recommended decision, the agency is in no way bound by the decision of its subordinate officer; it retains complete freedom of decision, as though it had heard the evidence itself. This follows from the fact that a recommended decision is advisory in nature. [Citation omitted].
Att'y Gen. Manual on the Administrative Procedure Act, Chap. VII, §8 pp. 83-84 (1947); see also Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). See generally Mattes v. United States Dep't of Agriculture, 721 F.2d 1125, 1128-30 (7th Cir. 1983); McCann v. Califano, 621 F.2d 829 (6th Cir. 1980).
* * *
In performing its de novo review, the Board applies the "preponderance of the evidence standard" to the evidence. Martin v. Dep't of the Army, ARB Case No. 96-131, ALJ Case No. 93-SDW-1, Dec. and Ord., Jul. 30, 1999, slip op. at 6, citing Ewald v. Commonwealth of Virginia, Case No. 89-SDW-1, Sec. Dec. and Rem. Ord., Apr. 20, 1995, slip op. at 11.

See also Griffith v. Wackenhut Corp., ARB No. 98-067, ALJ No. 1997-ERA-52 (ARB Feb. 29, 2000) ("Neither §5851 of the Energy Reorganization Act nor applicable regulations specify our standard of review. Accordingly, our review is de novo. 5 U.S.C. §557(b) (1996)."); compare Johnson v. Roadway Express, Inc., ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000) (by regulation, ARB is bound by factual finding of ALJ if supported by substantial evidence; ALJ's conclusions of law, however, are reviewed de novo).

[Nuclear and Environmental Whistleblower Digest VIII B 2 a]
STANDARD OF REVIEW; DE NOVO ON BOTH FACTS AND LAW; PREPONDERANCE OF EVIDENCE STANDARD

"[T]he Board is not bound by either the ALJ's findings of fact or conclusions of law, but reviews both de novo. * * * In reviewing an ALJ recommended decision under the whistleblower provisions of the environmental statutes, we apply the APA's 'preponderance of the evidence standard.'... Evidence meets the 'preponderance of the evidence' standard when it is more likely than not that a certain proposition is true." Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1 (ARB Apr. 25, 2000) @ 7 (citations omitted).

[Nuclear and Environmental Whistleblower Digest VIII B 2 a]
CREDIBILITY DETERMINATION; ARB OVERRULES ALJ

In Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1 (ARB Apr. 25, 2000), the ARB rejected the finding of the ALJ that one of Respondent's witnesses was not credible, where the ARB found that the ALJ erred in admitting a post-hearing deposition of the Wage and Hour investigator that was the basis for the ALJ's finding that the witness was not credible. The ARB also, ruled, however, that even if the deposition had been properly admitted into the record, the ARB would not conclude that it demonstrated that Respondent's witness had lied. The ARB held that "[t]he totality of Rodenhausen's testimony does not support the ALJ's finding that Shaulis lied or his conclusion that the Company's explanation for the termination was 'pretext and untrue.'" Id. @ n.18.

CREDIBILITY DETERMINATIONS; SCOPE OF DEFERENCE TO DEMEANOR FINDINGS VERSUS FINDINGS BASED ON SUBSTANCE OF TESTIMONY
[N/E Digest VIII B 2 a]

Credibility findings that are explicitly based on the demeanor of the witnesses may be accorded exceptional weight by a reviewing court. These demeanor findings are distinct from credibility findings based on the substance of the testimony itself, e.g., internal inconsistency, inherent improbability, important discrepancies, impeachment, and witness self-interest. Frady v. Tennessee Valley Authority, 92-ERA-19 and 34 (Sec'y Oct. 23, 1995).

VIII B 2 a Deference to ALJ's credibility determinations

An ALJ's credibility determinations are entitled to some weight because he or she sees the witnesses and hears them testify. Jopson v. Omega Nuclear Diagnostics, 93-ERA-54 (Sec'y Aug. 21, 1995).

VIII B 2 a Where Respondent rebuts prima facie case, and ALJ considers entire record in finding that Complainant did not carry ultimate burden, Secretary need not discuss whether prima facie case was established

In Moody v. Tennessee Valley Authority, 91-ERA-40 and 92- ERA-49 (Sec'y Apr. 26, 1995), the Secretary noted that where the Respondent presented evidence to rebut a prima facie case, and the ALJ considered the entire record in reaching his recommended decision that the Complainant did not carry his burden of establishing that the articulated reasons were pretext or that the reason for the adverse employment action was protected activity, the issue of whether the Complainant established a prima facie case did not merit discussion.

VIII B 2 a Credibility determinations of ALJ and Secretary

In Pogue v. United States Dept. of the Navy, 87- ERA-21 (Sec'y May 10, 1990), the Secretary rejected the ALJ's credibility determinations in which she credited the testimony of Claimant over that of her direct supervisor. The Ninth Circuit, however, found that the Secretary's reasons for rejecting the ALJ's credibility determinations were not supported by the record. Pogue v. United States Dept. of Labor, 940 F.2d 1287 (9th Cir. 1987).

VIII B 2 a Credibility determination

In Atchison v. Tompkins-Beckwith, Inc., 82-ERA-12 (Sec'y Jan. 28, 1988), the ALJ who conducted the hearing died prior to decision, and the parties agreed to have the case decided on the existing record by another ALJ. On review, the Secretary noted that in judging credibility of witnesses, demeanor was not a factor.

The Secretary, noting that the ALJ's decision in a complaint filed by Complainant against his former employer was in the record, slip op. at 19 n.12, took into account that the ALJ had found Complainant to be a totally unreliable witness. Slip op. at 29.

[Editor's note 1: The implication is that the Secretary would give no deference to ALJ credibility determinations.]

[Editor's note 2: The Fifth Circuit issued a slip opinion in this matter, but I do not have a copy of it. Atchison v. McLaughlin, No. 88-4150 (5th Cir. Nov. 7, 1988).]

VIII B 2 a Inferences drawn from ALJ's findings

Where all of the complainant's protected activity occurred after he had quit his job, he could not make out a prima facie case that the respondent terminated him because of his protected activity. Hadley v. Quality Equipment Co., 91-TSC- 5 (Sec'y Oct. 6, 1992) (the ALJ had found that the complainant had not resigned; the Secretary accepted the ALJ's findings of fact and credibility determinations, but rejected the inferences he drew from those findings).

VIII B 2 a Secretary not bound by ALJ's credibility determination

VIII B 2 a Weight to be afforded credibility based on demeanor as opposed to other factors

Although substantial weight is given to credibility findings of an ALJ that "rest explicitly on an evaluation of the demeanor of the witnesses", NLRB v. Cutting, Inc., 701 F.2d 656, 663 (7th Cir. 1983), credibility findings based on internal inconsistency, inherent improbability, important discrepancies, impeachment or witness self-interest are entitled to the weight which "in reason and in the light of judicial experience they deserve." Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951); Ertel v. Giroux Brothers Transp., Inc., 88-STA-24 (Sec'y Feb. 16, 1989), slip op. at 12 and n.7.

Bartlik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y June 24, 1992), slip op. at 4 n.1.

VIII B 2 a No deference to ALJ's inferences

In Smith v. Norco Technical Services, 85-ERA-17 (Sec'y Oct. 2, 1987), the Secretary deferred to the credibility determinations made by the ALJ, but noted that deference to an ALJ's credibility determinations should be distinguished from the authority of an agency to draw its own inferences from proven facts in the record without deference to inferences drawn by the ALJ.

VIII B 2 a Special weight to credibility determinations

Drawing by analogy on NLRB and MSPB cases, the court in Pogue v. United States Dept. of Labor, 940 F2d 1287 (9th Cir. 1991), indicated that in whistleblower complaints made under federal environmental statutes the credibility determinations of the administrative law judge are not binding on the Secretary, and that the Secretary may substitute her judgment for that of the administrative law judge; however, when the finding of the administrative law judge differs from the Secretary's, special deference will be given the administrative law judge's credibility judgments for the obvious reason that he or she sees the witnesses and hears them testify while the Secretary only reviews cold records.

VIII B 2 b Evidence before Secretary

The Secretary considered certain documents not submitted to the ALJ as an unopposed motion to supplement the record, where the respondent did not object to the filing. Ridings v. Commonwealth Edison, 88-ERA-27 (Sec'y Sept. 20, 1991) (order of dismissal).

[Nuclear & Environmental Whistleblower Digest VIII B 2 b]
SCOPE OF RECORD BEFORE ARB ON REVIEW; NEW EVIDENCE

In Devine v. Blue Star Enterprises, Inc., ARB No. 04-109, ALJ No. 2004-ERA-10 (ARB Aug. 31, 2006), PDF | HTM the Complainant submitted documents with his appellate brief that were not submitted to the ALJ in conjunction with his response to the Respondent's motion for summary decision. The Respondent objected. The ARB applied 29 C.F.R. � 18.54(c) -- and finding that the Complainant had not established that the additional exhibits were not available at the time of the ALJ's consideration of the motion for summary decision -- refused to consider those exhibits on appeal.

[Nuclear & Environmental Whistleblower Digest VIII B 2 b]
ADDITIONAL EVIDENCE BEFORE THE ARB

In Trachman v. Orkin Exterminating Company, Inc., ARB No. 01 067, ALJ No. 2000 TSC 3 (ARB Apr. 25, 2003), Complainant sought permission for the introduction of additional testimony from a witness to support his allegation that the responsible official of Respondent knew about his safety complaints prior to his discharge. The case had been dismissed by the ALJ for lack of such knowledge. Finding that Complainant knew about the witnesses' potential testimony prior to the hearing, the ARB denied the motion to permit the testimony pursuant to 29 C.F.R. § 18.54(c) (2002), holding that once a record is closed, the rules of procedure permit acceptance of additional evidence only "upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record."

[Nuclear & Environmental Digest VIII B 2 b]
MOTION TO REOPEN; STANDARD IS NOT WHEN MOVANT GAINED ACCESS TO DOCUMENTS, BUT WHETHER THEY WERE AVAILABLE WHILE THE RECORD WAS STILL OPEN

In Lewis v. U.S. Environmental Protection Agency, ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Feb. 29, 2008), the Complainant sought to reopen the record based on documents to which he had obtained access when they were produced in two lawsuits to which he was not a party. The ARB denied the motion, holding that the standard for admitting such documents was not when the Complainant had access to them, but whether they were available while the record was still open. The ARB observed that the Complainant had offered no evidence to show that he could not have timely obtained the documents, and that the attorney who filed the lawsuits, and subsequently gave the Complainant access to documents in those cases, testified on the Complainant�s behalf in the DOL whistleblower proceeding. The ARB also found that the new documents were not material to the issue of whether the Respondent took any adverse employment action against the Complainant.

[Nuclear & Environmental Digest VIII B 2 b]
REOPENING RECORD BEFORE THE ARB

When considering a motion to reopen to submit new evidence, the ARB relies on the same standard as found in the OALJ Rules of Practice at 29 C.F.R. § 18.54(c). Williams v. Lockheed Martin Energy Systems, Inc., ARB No. 98-059, ALJ No. 1995-CAA-10 (ARB Jan. 31, 2001).

[Nuclear & Environmental Digest VIII B 2 b]
REOPENING RECORD; NEW AND MATERIAL EVIDENCE

In Overall v. Tennessee Valley Authority, ARB Nos. 98-111, 98-128, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001), evidence of recent NRC findings that aided in understanding Complainant's protected activity was submitted under joint motion. The ARB found that it was new and material evidence that was not readily available prior to the close of the record before the ALJ, and therefore granted the motion to receive the NRC findings into the record. See 29 C.F.R. § 18.54(c) (2000).

[Nuclear & Environmental Digest VIII B 2 b]
REMAND; NEW EVIDENCE BEARING ON COMPLAINANT'S CREDIBILITY

In Overall v. Tennessee Valley Authority, ARB Nos. 98-111, 98-128, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001), Respondent moved for a remand to the ALJ to develop the record to determine whether evidence generated by TVA during an investigation after the close of the ALJ hearing had a bearing on Complainant's credibility. The ARB denied the motion because the parties had abundant opportunity to conduct discovery prior to the hearing.

[Nuclear & Environmental Digest VIII B 2 b]
REOPENING THE RECORD; "MATERIAL" MEANS SUFFICIENT WEIGHT TO WARRANT DIFFERENT OUTCOME

In Foley v. Boston Edison Co., ARB No. 99-022, ALJ No. 1997-ERA-56 (ARB Jan. 31, 2001), Complainant requested that the Board reopen the record to admit a letter from the NRC to the DOL regarding a protective order issued by the ALJ. The Board observed that when considering whether to admit new evidence, it will rely on the same standard found in the OALJ Rule of Practice at 29 C.F.R. § 18.54(c), which provides that, once the record is closed, additional evidence shall be accepted only upon a showing that it is new and material and was not readily available prior to the closing of the record. The Board held that it would consider evidence material when it is of sufficient weight to warrant a different outcome. The Board found that the letter had no bearing on the determinative findings of the ALJ, and therefore was immaterial.

[Nuclear & Environmental Digest VIII B 2 b]
RECORD BEFORE ARB; APPLICATION OF 29 C.F.R. § 18.54(c)

In Hasan v. Commonwealth Edison Co., ARB No. 00-043, ALJ No. 1999-ERA-17 (ARB Dec. 28, 2000), Complainant submitted new evidence in his rebuttal brief, and Respondent objected. Complainant filed a response to Respondent's objection, which also included extra-record information. Respondent again objected.

The ARB observed that it had previously held that it would rely on the Rules of Practice and Procedure for ALJ hearings at 29 C.F.R. § 18.54(c), when considering whether to admit new evidence. Doyle v. Hydro Nuclear Services, ARB No. 98-022, ALJ No. 1989-ERA-22 (ARB Sept. 6, 1996). Since Complainant did not assert that the proffered material was new evidence, nor did he argue that the evidence was unavailable to him prior to the close of the record, the ARB declined to consider the new material on appeal.

[Nuclear & Environmental Digest VIII B 2 b]
REOPENING OF RECORD; TRANSCRIPT AND EXHIBITS FROM ARBITRATION PROCEEDING

In Duncan v. Sacramento Metropolitan Air Quality Management District, ARB No. 99-011, ALJ No. 1997-CAA-12 (ARB July 10, 2000), the ARB granted Complainant's motion to reopen the record for the receipt of transcripts and exhibits submitted in an arbitration proceeding. This evidence first became available after the ALJ closed the record, but apparently before the ALJ issued his decision. The ARB, however, granted the motion because of the strong federal policy favoring collectively bargained arbitration proceedings. The ARB also granted Respondent's responsive motion to reopen the record to receive the arbitration decision itself.

[Nuclear & Environmental Digest VIII B 2 b]
ATTORNEY FEE; ADDITIONAL ITEMS ADDED TO PETITION BEFORE ARB

In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No. 1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB declined to grant Respondent's objection to the submission of two new items to a fee petition made before the ARB in clarification of the fee petition made before the ALJ. Respondent argued that this was new evidence and that the ARB was constrained to made its final decisions based on the record made before the ALJ.

The ARB held that it was not constrained to review attorney fees petitions based solely on the record made before the ALJ, citing the example of briefs prepared for review by the Board, which obviously could not have been in the record before the ALJ.

[Nuclear and Environmental Digest VIII B 2 b]
EVIDENCE SUBMITTED WITH BRIEF BEFORE ARB

In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 @ 5 (ARB Feb. 9, 1999), Respondent supplied documents attached to its opening brief before the ARB to support its argument that Complainant had a prior tardiness problem. The ARB observed that because those documents were not presented before the ALJ, they violated the rule that the record is closed at the conclusion of the hearing, and additional evidence shall not be accepted, absent a showing that it is new and material and was not readily available prior to the close of the hearing. 18 C.F.R. §18.54(a) and (c) (1998). Respondent asserted that the rule was not violated because it lacked notice, prior to the hearing, that Complainant was challenging the tardiness disciplinary notice. The ARB found that Complainant's complaint did not mention the issue, but that the ALJ cured the notice problem by inviting Respondent to submit copies of Fabricius' time cards after the hearing and by asking both parties to address the tardiness issue in their post hearing briefs. The ARB found that the request for post-hearing evidence and argument logically extended to all documents in the Respondent's possession concerning Complainant's tardiness, and declined to consider the additional evidence.

NEW EVIDENCE OFFERED DURING REVIEW BY BOARD
[N/E Digest VIII B 2 b and IX D 1]

In Timmons v. Mattingly Testing Services, 95- ERA-40 (ARB June 21, 1996), the Complainant submitted two affidavits to the Board, asking that they be admitted into evidence and considered on review, or that the case be remanded to the ALJ for the taking of additional evidence.

The Board looked to the provisions of 29 C.F.R. § 18.54(c) and Fed. R. Civ. P. 60(b)(2), and the decision of NLRB v. Jacob E. Decker and Sons, 569 F.2d 357 (5th Cir. 1978) for standards on admission of newly discovered evidence. The Board determined that in regard to the first affidavit, the Complainant could only have become aware of the affiant's potential as a witness through extensive discovery, and that the parties had not been afforded an opportunity for such discovery. The ALJ had limited discovery because of the statutory and regulatory time limits on whistleblower proceedings; the Board indicated that those time limits must yield to a litigant's need to prepare a full and fair presentation of the case. The Board found that the limits on discovery rendered the affiant's testimony "not readily available" prior to hearing. Since the Respondent must be given a meaningful opportunity to respond to affiant's allegations, the case was remanded to the ALJ.

The second affidavit was written by the Complainant. Although there was no evidence that such information was not readily available prior to the hearing, or that the Complainant was excusably ignorant of it prior to the hearing, the Board found that the ALJ's limitation of the parties pre-hearing preparation and the presentation of the evidence at the hearing was improper, and that the post-hearing admission of evidence relevant to the issues raised in the Complainant's affidavit was appropriate "as the conduct of the proceedings before the ALJ interfered with the overall presentation of the Complainant's case." Slip op. at 8-9 (footnote omitted).

VIII B 2 b Evidence attached to brief on review

Where the Complainant's counsel attached to his brief a copy of a Congressional committee report that had not been offered or admitted into evidence before the ALJ, the Secretary declined to consider the report or any reference to it in the brief. Scott v. Alyseka Pipeline Service Co., 92-TSC-2 (Sec'y July 25, 1995).

VIII B 2 b Secretary's improper reliance on offer of proof

In Crosby v. United States Dept. of Labor, No. 93-70834 (9th Cir. Apr. 20, 1995) (unpublished) (case below 85-TSC-2), the ALJ permitted the Respondent to make certain offers of proof when the ALJ refused to hear testimony from certain of Respondent's witnesses. The ALJ did not rely on the offers in his recommended decision. The Secretary, however, referred to them in the final decision. On appeal, the Complainant complained about reliance on the offers of proof. The court held that although there was improper reference to the offers of proof, see 29 C.F.R. § 18.103, it was not able to say that the Complainant's substantial rights were affected by the references, which were occasional, and accompanied by references to proper evidentiary matter.

VIII B 2 b New or additional evidence

Section 24.6(b) of 29 C.F.R. Part 24 requires that the Secretary's final order be based on the evidentiary record before the ALJ and on the ALJ's decision. Thus, where Complainant's submitted affidavits as a supplement to the record made before the ALJ, and where there was no allegation that evidence was newly discovered, (and could not have been given the nature of the submissions), the Secretary refused to consider any facts, or any contentions based on facts, not presented the ALJ. Richter v. Baldwin Associates, 84-ERA-9 to 10 (Sec'y Mar. 12, 1986) (order of remand).

VIII B 2 b New evidence

In Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 17, 1993), Complainant had initially received an agreement from a news reporter that she would appear as a witness on behalf of Complainant, but upon being subpoenaed, her counsel stated that if called she would invoke the First Amendment privilege. Accordingly, Complainant's counsel made an offer of proof concerning the reporter's testimony, and Respondent stipulated that the offer of proof could be used as evidence in the case.

After the matter had been forwarded to the Secretary for review, Complainant moved to admit into the record an affidavit of the reporter, and Respondent objected. The Secretary received the affidavit into evidence because it contained new evidence that the reporter had received orders from her superiors not to speak with counsel for Complainant.

VIII B 2 b Appendices to briefs; new evidence

In Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 17, 1993), Respondent moved to strike two appendices to Complainant's Supplemental Reply Brief because they consisted of newspaper articles concerning disciplinary actions against employees in divisions in which Complainant did not work and, therefore, assertedly were not relevant. The Secretary noted that the ALJ had liberally accepted into the record other newspaper accounts concerning organizations within Respondent in which Complainant did not work, and stated that in order to provide the fullest record possible, he would accept the appendices into the record.

VIII B 2 b Additional evidence

In Mitchell v. EG & G (Idaho), 87-ERA-22 (Sec'y July 22, 1993), Complainant contended that it should not matter whether the "written" complaint required to file an ERA complaint (and to apply equitable tolling for filing in the wrong forum) was in the hand of Complainant or a TVA representative. Although the Secretary recognized that this argument might have some theoretical merit, he declined to consider it because any such TVA document was not made part of the record below despite full opportunity to do so.

Complainant also argued that he had made a written contact with the NRC, and could present evidence to this effect. The Secretary denied the request to present additional evidence given that Complainant had ample opportunity to do so before the ALJ.

[Editor's note: The ALJ had conducted a hearing solely on timeliness.]

VIII. B. 2. b. Scope of review by the Secretary; new or additional evidence

Where prior to the hearing and the ALJ's recommended decision, the Respondent failed to produce a personnel record of a co- worker who had been promoted despite Complainant's attempt to obtain the records by subpoena, the Secretary admitted into evidence an attachment of a computer printout regarding that co- worker's job position on the ground that this document was not available prior to the close of the hearing. See 29 C.F.R. § 18.54(a) and (c). Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993).

VIII. B. 2. b. Scope of review by the Secretary; new or additional evidence

VIII B 2 b Evidence not part of record before ALJ

In Ashcraft v. University of Cincinnati, 83-ERA-7 (Sec'y Nov. 1, 1988), the Secretary ruled that a NRC Notice of Violation letter and appendix (which purportedly found that some of Complainant's allegations could lead to violations, personnel exposure to radiation and other consequences) was not admissible primarily because

complainants are protected from the earliest stage in which they are engaged in the protected activity and it does not matter in determining whether adverse action against the complainant was taken because of the protected activity, that the end result of the activity was or was not an NRC notice of violation.

but also because

Section 24.7(b) of 29 C.F.R. Part 24 requires that the Secretary's final order be based on the record and recommended decision of the ALJ, and since the NRC Notice was not part of the record below, it could not be considered.

VIII B 2 b Documents submitted in violation of 29 C.F.R. § 18.55

A pro se Complainant submitted "requests not to approve" the ALJ's Recommended Decision and Order and documents to the Secretary that were not admitted into evidence at the hearing, nor were they apparently served on opposing counsel. Since these submission violated 29 C.F.R. § 18.55, the requests and the documents were not made part of the formal records (although they were retained for the record). Wagerle v. The Hospital of the Univ. of Pennsylvania, Depts of Physiology and Pediatrics, 93-ERA-1 (Sec'y Mar. 17, 1995).

VIII B 2 c Secretary not bound by prior legal theories in early stage of proceeding

In Eisner v. U.S. Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), slip op. at 10, the Secretary affirmed the ALJ's determination that the complainant's complaint was untimely in regard to her termination. Nevertheless, the Secretary found that the complaint sufficiently raised a separate allegation of discriminatory act occurring after the termination -- the respondent purportedly refused to accept a resignation letter (which it earlier had indicated would, if tendered, result in the removal of the termination letter) after the complainant talked to reporters about a disputed sewage plant project.

The Secretary noted that

It is not fatal that Complainant's complaint did not set forth this claim precisely. [Nunn v. Duke Power Co., 84-ERA-27 (Sec'y July 30, 1987), slip op. at 12 n.3.] Nor is it determinative that Complainant's prior counsel did not press the ALJ to consider the question of timeliness with respect to this separate allegation. I am not bound by the prior legal theories, particularly at this early stage of the proceeding. [Chase v. Buncombe County, 85-SWD-4 (Sec'y Nov. 3, 1986), slip op. at 5. See also English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988)]."

Id. at 10 n.10.

[Nuclear and Environmental Whistleblower Digest VIII B 2 c]
ISSUES ON APPEAL; THEORY NOT RAISED BEFORE THE ALJ

In Saporito v. Central Locating Services, Ltd., ARB No. 05-004, ALJ No. 2004-CAA-13 (ARB Feb. 28, 2006), the ARB recognized that "[c]omplaining to an employer about being retaliated against for raising safety complaints can be protected activity." Slip op. at 9. In the instant case, however, it was unwilling to entertain an argument from the Complainant that he had engaged in such activity where he had not presented this theory to the ALJ, and where the argument was supported by no "references to the record, legal authority or analysis." Id. at 9.

[Nuclear and Environmental Digest VIII B 2 c]
RAISING OF THEORIES SUPPORTING THE COMPLAINT; ARB IS NOT REQUIRED TO REVIEW RECORD TO GLEAN AND RAISE SUA SPONTE LEGAL ISSUES REFERENCED OBLIQUELY BY A PARTY, BUT NOT CLEARLY ARTICULATED IN A BRIEF OR RULED ON BY THE ALJ

In Hall v. United States Dept. of Labor, Administrative Review Board, No. 05-9512 (10th Cir. Feb. 13, 2007), the court observed that there are two ways to establish constructive discharge: (1) show that the employer's discriminatory acts made working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign, or (2) show that the employer's discriminatory acts forces the plaintiff to choose between resignation or termination. The ALJ had made findings on the first method, but not the second. The Complainant argued that the ARB had erred in failing to recognize and analyze his claim under the second method. The court held that because the Complainant raised this second theory for the first time on appeal, it was waived. The court also observed in a footnote that the Complainant had shown that his counsel had made some passing references that allegedly raised the issue. The court, however, held that "[t]hese ambiguous allegations unsupported by legal argument or citation to evidentiary support in the record are insufficient to raise the specific legal theory Dr. Hall now alleges the ARB overlooked. The ARB cannot be charged with reviewing the entire record to glean and sua sponte raise legal theories referenced only obliquely by a party but not clearly articulated in its briefs or ruled on by the ALJ."

[Nuclear and Environmental Whistleblower Digest VIII B 2 c]
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION THEORY WAIVED ON APPEAL IF NOT RAISED BEFORE THE ALJ

Even though ARB review of a ALJ decision under the environmental whistleblower laws is de novo, where the Complainant did not raise a contention that all of the alleged adverse actions occurring before the 30 day limitations period should be considered timely based on a continuing violation theory until review before the ARB, the Board found that the issue had been waived on appeal. Schlagel v. Dow Corning Corp., ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004).

[Nuclear & Environmental Whistleblower Digest VIII B 2 c]
ARGUMENT RAISED FOR FIRST TIME ON APPEAL; ARB DECLINES TO CONSIDER

In Duprey v. Florida Power & Light Co., ARB No. 00 070, ALJ No. 2000 ERA 5 (ARB Feb. 27, 2003), Complainant argued on appeal to the ARB that he was taking leave under the Family and Medical Leave Act, which rebutted Respondent's assertion of its absenteeism policy as the basis for Complainant's demotion. The ARB found that, except for a passing reference in his complaint, Complainant had raised this argument for the first time on appeal, and therefore declined to consider it.

To the same effect: Honardoost v. PECO Energy Co., ARB No. 01 030, ALJ No. 2000 ERA 36 (ARB Mar. 25, 2003); Anderson v. Metro Wastewater Reclamation District, ARB No. 01 103, ALJ No. 1997 SDW 7 (ARB May, 29, 2003); Bauer v. United States Enrichment Corp., ARB No. 01 056, ALJ No. 2001 ERA 9 (ARB May 30, 2003).

[Nuclear & Environmental Digest VIII B 2 c]
ARGUMENTS RAISED FIRST ON APPEAL

The ARB generally will not consider arguments that are raised for the first time on appeal. Foley v. Boston Edison Co., ARB No. 99-022, ALJ No. 1997-ERA-56 (ARB Jan. 31, 2001).

[Nuclear & Environmental Digest VIII B 2 c]
ISSUES PRESERVED ON APPEAL; POLICY OF APPELLATE RESTRAINT

In Williams v. Lockheed Martin Energy Systems, Inc., ARB No. 98-059, ALJ No. 1995-CAA-10 (ARB Jan. 31, 2001), the ALJ had dismissed two individuals as Respondents, and Complainant did not challenge those dismissals on appeal; one member of the Board, however, criticized the ALJ's dismissal of these individuals. The majority opinion, however, noted that "[i]t is a basic tenet of appellate practice and procedure that the reviewing court will not address rulings of the trial judge that the parties do not challenge on appeal." Although recognizing that the rules of appellate restraint apply differently in administrative adjudications than in Article III courts, the majority nonetheless pointed out that appellate restraint serves the fairness considerations of not depriving parties of the ability to control what or how much they place at risk of reversal, and reserving exceptions to the rule for "extraordinarily important issues, such as jurisdiction or the validity of the law on which the appeal depends."

[Nuclear & Environmental Digest VIII B 2 c]
ATTORNEY FEE PETITION; RESPONDENT'S FAILURE TO OBJECT BEFORE ALJ DOES NOT RESULT IN WAIVER OF RIGHT TO OBJECT BEFORE ARB WHERE ORIGINAL FEE PETITION LACKED REQUIRED AFFIDAVIT OF COUNSEL AND WAS SO CURSORY AS TO PRECLUDE MEANINGFUL OBJECTIONS

In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No. 1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ALJ had criticized Complainant's attorney fee petition because it did not identify the date, time and duration of the activities listed, but granted the requested amount because Respondent had not filed an objection. Before the ARB, Respondent explained that it could not submit a meaningful response to the fee petition because of its cursory form, and requested a remand to the ALJ to require Complainant's counsel to submit the fee petition in proper form. Complainant's counsel, however, submitted an affidavit of counsel with a much clearer listing, and argued that Respondent had waived its right to object when it did not object before the ALJ. Respondent filed a rebuttal brief objecting to several items in the new fee petition, and Complainant then submitted a motion to clarify. The ARB found the remand motion to be moot, granted the motion to clarify, and found that Respondent did not waive its right to object because the original fee petition lacked the required affidavit of counsel and was not specific enough to permit formulation of meaningful objections.

[Nuclear & Environmental Digest VIII B 2 c]
AMENDMENT OF COMPLAINT; TIMING

In Johnson v. Oak Ridge Operations Office, ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30, 1999), Complainants raised the applicability of the employee protection provision of the STAA to the proceeding for the first time in a letter to the ARB. The ARB held that since the applicability of the STAA was not raised in the individual complaints or before the ALJ, it would not be considered in the Board's decision.

[N/E Digest VIII B 2 c]
BOARD'S CONSIDERATION OF UNPLEADED ISSUE

In MacLeod v. Los Alamos National Laboratory, 94-CAA-18 (ARB Apr. 23, 1997)(this was actually an "ERA" case), the Board considered Complainant's complaints about oversized gloves when handling radioactive material in reviewing Respondent's motive for discharge even though Complainant did not allege this complaint as protected activity in the early stages of the litigation. The Board noted that Complainant had referred to these particular complaints in her deposition prior to hearing, and thus Respondent was on notice that such allegations existed. In addition, Complainant's supervisor testified at the hearing about oversized gloves and conceded that they could be deemed safety issues. The Board cited in this regard Yellow Freight Sys. Inc. v. Martin, 954 F.2d 353, 358-59 (6th Cir. 1992)(unpleaded issue may be tried by implied consent).

FINDING OF VIOLATION; SECRETARY'S AUTHORITY TO RAISE VIOLATION NOT LITIGATED
[N/E Digest VIII B 2 c]

The Secretary improperly made a finding that the Respondent made a second and independent violation of the ERA when it broke off settlement negotiations at least in part because the Complainant proposed to delete a gag provision, where that issue was not litigated by the parties. The Connecticut Light & Power Co. v. Secretary of the United States Dept. of Labor, No. 95-4094 (2d Cir. May 31, 1996) (available at 1996 U.S. App. LEXIS 12583)(case below 89-ERA-38).

VIII B 2 c Permissible to amend pleadings to include CERCLA

In Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 1, 1993), the Secretary permitted a Complainant who filed the initial pleadings in the matter pro se to amend his complaint to include a cause of action under CERCLA. The Secretary concluded that the employee protection provision of CERCLA was similar enough to those of the CAA and TSCA that allowing amendment before the Secretary would not prejudice Respondent. The ALJ had not allowed an amendment because he did not believe that amendment would alter the analysis or the outcome in the case.

VIII B 2 c Secretary not precluded from considering factors not argued by complainant where they had been implicitly raised and litigated

In Cowan v. Bechtel Construction, Inc., 87-ERA-29 (Sec'y Mar. 24, 1995), the Secretary considered the fact that Complainant had filed three prior ERA complaints against the Respondent prior to the present action in consideration of whether there had been protected activity, and a causal link. The Secretary noted that "Complainant's failure to allege this protected activity as a potential basis for the adverse action does not preclude the Secretary from considering such a claim where as here it had been implicitly raised and litigated." Citing Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 357-59 (6th Cir. 1992).

[Nuclear and Environmental Whistleblower Digest VIII B 2 d]
SUMMARY DECISION; LIMITATION ON DISCOVERY; BURDEN OF APPELLANT ON REVIEW

Even though the ARB reviews an ALJ's decision on summary judgment de novo, an ALJ's limitation on the scope of discovery lies within his or her sound discretion. To establish that the ALJ abused that discretion, the appellant must show, at a minimum, how further discovery could have permitted the appellant to rebut the movant's contentions. Mere argument on appeal that the appellant should have been permitted complete discovery does not meet that burden. Saporito v. Central Locating Services, Ltd., ARB No. 05-004, ALJ No. 2004-CAA-13 (ARB Feb. 28, 2006).

[Nuclear and Environmental Whistleblower Digest VIII B 2 d
ARB'S STANDARD OF REVIEW; ALJ'S RECOMMENDED GRANT OF JUDGMENT AS A MATTER OF LAW

The ARB applies a de novo standard of review of an ALJ's recommended grant of judgment as a matter of law. Immanuel v. The Railway Market, ARB No. 04-062. 2002-CAA-20 (ARB Dec. 30, 2005).

VIII B 2 d Summary decision; de novo review

[Nuclear & Environmental Digest VIII B 2 d]
SUMMARY DECISION; ARB'S SCOPE OF REVIEW IS DE NOVO

An ALJ's recommendation to grant summary judgment is reviewed by the ARB de novo. Whitaker v. CTI-Alaska, Inc., ARB No. 98-036, ALJ No. 1997-CAA-15 (ARB May 28, 1999).

[Nuclear and Environmental Whistleblower Digest VIII B 2 d]
STANDARD OF REVIEW OF ALJ'S GRANT OF SUMMARY DECISION

The ARB reviews an ALJ's grant of summary decision de novo. The Board "will affirm the ALJ's recommendation that summary decision be awarded if, upon review of the evidence in the light most favorable to the non-moving party, [the Board] determines that there exists no genuine issue as to any material fact and that the ALJ correctly applied the relevant law." Erickson v. U.S. Environmental Protection Agency, ARB No. 99-095, ALJ No. 1999-CAA-2, slip op. at 5 (ARB July 31, 2001) (citations omitted).

[Nuclear and Environmental Digest VIII.B.2.e.]
STANDARD OF REVIEW; ALLEGED PROCEDURAL ERRORS

The ARB will review allegations of procedural errors by the ALJ under the abuse of discretion standard. Khandelwal v. Southern California Edison, ARB No. 98-159, ALJ Nos. 1997-ERA-6 (ARB Nov. 30, 2000).

[Nuclear & Environmental Whistleblower Digest VIII B 2 e]
ARB REVIEW; ALLEGATIONS OF PROCEDURAL ERROR REVIEWED UNDER ABUSE OF DISCRETION STANDARD

The ARB reviews an ALJ's findings of fact and conclusions of law in an ERA whisteblower case de novo. Allegations of procedural error by the ALJ, however, are reviewed under an abuse of discretion standard. Hasan v. J.A. Jones, Inc., ARB No. 02 121, ALJ No. 2002 ERA 18 (ARB June 25, 2003).

[Nuclear & Environmental Digest VIII B 2 e]
REVIEW OF ALJ PROCEDURAL RULINGS; ABUSE OF DISCRETION STANDARD

The ARB reviews alleged procedural errors by an ALJ under the abuse of discretion standard. Cox v. Lockheed Martin Energy Systems, Inc., ARB No. 99-040, ALJ No. 1997-ERA-17 (ARB Mar. 30, 2001).

VIII B 3 Interlocutory appeals; briefing schedule

It is error for an ALJ to establish a briefing schedule for briefs to the Secretary on interlocutory appeal. The Director of the Office of Administrative Appeals has the delegated authority to establish briefing schedules in cases before the Secretary on review of recommended decisions of ALJs. Manning v. Detroit Edison Corp., 90-ERA-28 (Sec'y Aug. 23, 1990).

[Nuclear and Environmental Whistleblower Digest VIII B 3]
ERROR OF ALJ IN PLACING NOTICE OF APPEAL RIGHTS ON ORDER RULING ON MOTION FOR SUMMARY DECISION

In Neal v. Entergy Nuclear Operations, Inc., ARB Nos. 06-084, 06-86, ALJ No. 2006-ERA-3 (ARB July 26, 2006), PDF | HTM the ALJ had erroneously placed a Notice of Appeals Rights at the end of an order ruling on a motion for summary decision. The parties agreed to dismiss the appeal as interlocutory.

[Nuclear and Environmental Whistleblower Digest VIII B 3]
INTERLOCUTORY APPEAL

In Colley v. U.S. Dept. of Energy, ARB Nos. 04-089, 05-071, ALJ Nos. 2004-ERA-18 and 19 (ARB Nov. 15, 2005), the Complainant filed an interlocutory appeal challenging the Chief ALJ's order refusing to permit the Complainant to be represented by an attorney who had been earlier suspended from appearing before OALJ. While the interlocutory appeal was pending, the ARB issued an order affirming OALJ's suspension of the attorney. Thus, the ARB issued an order to show cause why the interlocutory appeal in the instant case was not moot. The Complainant's response did not address the mootness issue, and consequently the ARB dismissed the interlocutory appeal.

[Nuclear and Environmental Whistleblower Digest VIII B 3]
INTERLOCUTORY APPEAL; MOOTNESS; NO APPEAL OF INTERVENING RECOMMENDED DECISION ON THE MERITS

The ARB dismissed an interlocutory appeal of the ALJ's refusal to accept the Complainant's attorney's entry of appearance where the Complainant failed to respond to the ARB's order to show cause why the interlocutory appeal should not be dismissed as moot. The ARB raised the mootness issue because the Complainant had not appealed the ALJ's later recommended decision and order on the merits. Stinger v. Science & Engineering Associates, Inc., ARB No. 05-001, ALJ No. 2004-ERA-20 (ARB July 27, 2005).

[Nuclear and Environmental Whistleblower Digest VIII B 3]
INTERLOCUTORY APPEAL; ALJ'S DECISION TO DISQUALIFY HIMSELF

In Erickson v. U.S. Environmental Protection Agency, Region 4, ARB No. 04-071, ALJ No. 2004-CAA-7 (ARB Apr. 30, 2004), the ARB denied the Complainant's petition for interlocutory appeal of an ALJ's decision to disqualify himself from hearing the Complainant's most recent appeal. The ALJ had held in favor of the Complainant in two previous cases, and the Respondent filed a motion to recuse, arguing that the ALJ was biased in favor of the Complainant. The ALJ explicitly rejected the alleged bias ground for recusal, but nonetheless disqualified himself for personal health reasons. The ARB held that "the question of whether or not an administrative law judge should have disqualified himself is reviewable on appeal with the decision on the merits issued by an administrative law judge. . . . Consequently, an order of recusal, like that issued by the ALJ on March 16, 2004, does not qualify for immediate review under the collateral order exception to the Cohen finality doctrine." Slip op. at 3 (citation omitted).

[Nuclear & Environmental Whistleblower Digest VIII B 3]
INTERLOCUTORY APPEAL; COMPLAINANT'S FAILURE TO SERVE RESPONDENT WITH REQUEST FOR HEARING

In Hibler v. Exelon Nuclear Generating Co., LLC, 2003 ERA 9 (ALJ May 5, 2003), the ALJ had declined to dismiss a hearing request that, although timely filed with OALJ, was not filed on the Respondent by the pro se Complainant. In Hibler v. Exelon Nuclear Generating Co., LLC, 2003 ERA 9 (ALJ June 4, 2003), the ALJ granted the Respondent's motion to certify the case to the ARB as an interlocutory appeal. In Hibler v. Exelon Generation Co., LLC, ARB No. 03 106, ALJ No. 2003 ERA 9 (ARB Feb. 26, 2004), the ARB denied an interlocutory appeal, observing that the Board had decided a case directly on point Shelton v. Oak Ridge Nat'l Lab., ARB No.98 100, ALJ No. 1995 CAA 19 (ARB June 22, 1998) (denying interlocutory appeal;. complainant could raise any arguments concerning the timeliness of the respondent's request for hearing in her brief challenging the ALJ's recommended decision) and Shelton v. Oak Ridge Nat'l Lab., ARB No.98 100, ALJ No. 1995 CAA 19 (ARB Mar. 30, 2001) (time limit for filing a request for a hearing is subject to equitable tolling).

[Nuclear & Environmental Whistleblower Digest VIII B 3]
ADVISORY OPINIONS; ARB DECLINES TO ISSUE

See Migliore v. Rhode Island Dept. of Environmental Management, ARB No. 99 118, ALJ Nos. 1998 SWD 3, 1999 SWD 1 and 2 (ARB July 11, 2003), casenoted at XX E for the proposition that the ARB declines to issue advisory opinions.

[Nuclear & Environmental Whistleblower Digest VIII B 3]
INTERLOCUTORY APPEAL; ARB VERY RELUCTANT TO INTERFERE WITH ALJ'S CONTROL OVER THE COURSE OF A HEARING

In Saporito v. GE Medical Systems, ARB No. 04 007, ALJ No. 2003 CAA 1 and 2 (ARB Nov. 25, 2003), Complainant sought an interlocutory appeal of the ALJ's order denying Complainant's motion to offer rebuttal testimony post trial. The ALJ had also denied Complainant's request to certify the issue for interlocutory appeal.

The ARB declined to decide whether the ALJ's denial of certification was fatal to the interlocutory appeal, as Complainant had failed to articulate any ground sufficient to convince the ARB to depart from its strong policy against piecemeal appeals. Complainant argued that his appeal fell within the Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), collateral order exception B that the order appealed must "conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." 437 U.S. at 468. Complainant argued that he has a "due process" right to present rebuttal witness testimony, but the ARB found that this is the substantive issue for which review was sought and that it was first necessary to determine whether procedurally interlocutory review was appropriate. The ARB found that it was not, observing that it is very reluctant to interfere with an ALJ's control over the course of the hearing, and that the ALJ's ruling was not effectively unreviewable on appeal.

[Nuclear & Environmental Whistleblower Digest VIII B 3]
INTERLOCUTORY APPEAL; ALJ'S CERTIFICATION OF ISSUE

See Hibler v. Exelon Nuclear Generating Co., LLC, 2003 ERA 9 (ALJ June 4, 2003), case noted at VI C regarding the ALJ's certification of jurisdictional issue.

[Nuclear & Environmental Whistleblower Digest VIII B 3]
INTERLOCUTORY APPEAL; DENIAL OF PROTECTIVE ORDER REGARDING DEPOSITION OF CEO

In Shirani v. Com/Exelon Corp., ARB No. 03 028, ALJ No. 2002 ERA 28 (ARB Dec. 10, 2002), the ARB denied interlocutory appeal of an ALJ's order denying a protective order regarding the deposition of Respondent's CEO. The ARB found that Respondent had failed to allege, much less establish, that the ALJ's order falls within the collateral appeal exception to the final decision requirements, and observed that it is reluctant to interfere with an ALJ's control over the course of a hearing.

[Nuclear & Environmental Whistleblower Digest VIII B 3]
INTERLOCUTORY APPEALS DISFAVORED; ALJ'S PROCEDURAL ORDERS

In Hasan v. J.A. Jones Management Services, Inc., ARB No. 02 096, ALJ No. 2002 ERA 18 (ARB July 16, 2002), the ARB applied its policy of disfavoring interlocutory appeals to deny Complainant's "emergency" appeals of ALJ orders denying a motion to amend the complaint, denying a motion to compel and denying a request for a continuance, where Complainant merely argued that the ALJ's orders were in error. The ARB wrote: "Hasan has perfected his objections to the ALJ's orders. If, after the ALJ issues a recommended decision and order, Hasan wishes to appeal such order, he may then raise all of his objections to the order, thus avoiding the piecemeal litigation of this case."

[Nuclear & Environmental Whistleblower Digest VIII B 3]
INTERLOCUTORY APPEALS DISFAVORED; ALJ'S DENIAL OF MOTION TO RECUSE

In Greene v. Environmental Protection Agency, ARB No. 02 050, ALJ No. 2002 SWD 1 (ARB Sept. 18, 2002), the ARB declined to entertain an interlocutory appeal on the presiding ALJ's denial of a motion for recusal. The ARB noted that disqualification issues are reviewable on appeal from a final judgment, and therefore did not fall within the "collateral order exception" to deferral of appellate review until the whole case is adjudicated.

[Nuclear & Environmental Whistleblower Digest VIII B 3]
INTERLOCUTORY APPEALS DISFAVORED; ALJ'S DISCOVERY ORDERS

In Puckett v. Tennessee Valley Authority, ARB No. 02 070, ALJ No. 2002 ERA 15 (ARB Sept. 26, 2002), the ARB declined to entertain an interlocutory appeal requesting that the ARB review all of the ALJ's discovery orders. The ARB wrote that if Complainant "believes that the ALJ's discovery orders constituted an abuse of discretion that prejudiced his case, he may so argue on appeal, if and at such time as, the ALJ issues a recommended decision and order denying his claim." In Puckett, the ARB pointed out that in Greene, it had held that "the Board's policy against interlocutory appeals incorporates 29 U.S.C.A. § 1291's final decision requirement, which provides that the courts of appeals have jurisdiction 'from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court." According to the ARB, "[p]ursuant to § 1291, ordinarily, a party may not prosecute an appeal until the district court has issued a decision that, 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' Catlin v. United States, 324 U.S. 229, 233 (1945)." The ARB wrote that "[w]hile ALJs in environmental whistleblower cases issue recommended, rather than final decisions, the ALJ, who presides over the hearing phase of the litigation, is entitled to the same opportunity to issue independent decisions as a district court judge." The ARB also considered whether the instant appeal fell within the collateral order exception, and finding that discovery orders are readily subject to review on appeal, found that they generally do not qualify as appealable collateral orders.

[Nuclear & Environmental Whistleblower Digest VIII B 3]
INTERLOCUTORY APPEALS; CERTIFICATION REQUIREMENT

In Hasan v. J.A. Jones Management Services, Inc., ARB No. 02 096, ALJ No. 2002 ERA 18 (ARB July 16, 2002), Greene v. Environmental Protection Agency, ARB No. 02 050, ALJ No. 2002 SWD 1 (ARB Sept. 18, 2002), and Puckett v. Tennessee Valley Authority, ARB No. 02 070, ALJ No. 2002 ERA 15 (ARB Sept. 26, 2002), the ARB stated that the ALJ should follow the procedure established in 28 U.S.C.A. § 1292(b)(West 1993) for certifying interlocutory questions for appeal. In each of the cases, the ARB observed that the ALJs involved had not certified questions of law for the ARB's review, but did not reach the issue of whether the failure to obtain a certification from the ALJ was fatal to the interlocutory appeals. Rather, each case was decided based on the ARB's policy disfavoring interlocutory appeals.

[Nuclear & Environmental Whistleblower Digest VIII B 3]
INTERLOCUTORY APPEALS; REQUIREMENT OF CERTIFICATION BY ALJ

In Dempsey v. Fluor Daniel, Inc., ARB No. 01 075, ALJ No. 2001 CAA 5 (ARB May 7, 2002), at the beginning of the hearing counsel for both the Complainant and the Respondent informed the ALJ that because the Regional Administrator had dismissed the complaint on the ground that the Complainant was not Respondent's employee, both counsel were prepared to litigate only the employer employee issue. The ALJ, although having expected the hearing to include the merits of all issues, permitted the hearing to be limited to this issue when it became clear that the neither side was ready to litigate the other issues. The ALJ thereafter found that Complainant was an employee, and recommended a remand for an investigation into the other issues in the case; the ALJ included in this order a Notice of Appeal Rights. Respondent then filed a petition for review with the ARB. The ARB concluded that this was an interlocutory appeal, and ordered Respondent to show cause why the Board should not dismiss its petition for review and remand the case to the ALJ to complete the adjudication.

In deciding whether to grant an interlocutory appeal, the ARB first held that the ALJ's actions in permitting the parties to bifurcate the hearing (albeit reluctantly) and appending the Notice of Appeal Rights to the decision on the employee issue, were tantamount to a certification of the issue (certification being required by the Secretary's decision in Plumley, v. Federal Bureau of Prisons, 1986 CAA 6, slip op. at 2 (Sec'y April 29, 1987)).

The ARB, however, nonetheless declined to hear the appeal, holding:

This case involves neither the number of complainants and novel threshold issues, nor the length of litigation involved in [OFCCP v.] Honeywell[ , Inc., No. 1977 OFC 3 (Sec'y June 2, 1993)] in which the Secretary had accepted an interlocutory appeal in an case that had been pending for more than ten years]. Furthermore, Fluor Daniel has identified no threshold legal issues, the resolution of which, would encourage the parties to engage in voluntary mediation. Essentially Fluor Daniel argues that we should consider the appeal because if we reverse the ALJ's coverage finding, the case will be concluded. However, in most cases in which a party files an interlocutory appeal of a non procedural issue, resolution of the issue appealed would resolve the case. Nevertheless, this fact alone has not been considered a sufficient basis upon which to depart from the general rule that interlocutory appeals are disfavored.

(footnote omitted).

[Nuclear & Environmental Digest VIII B 3]
INTERLOCUTORY APPEAL; ARB PARTICULARLY CHARY OF INTERFERING WITH ALJ'S CONTROL OVER TIME, PLACE AND COURSE OF HEARING

The ARB, in Hasan v. Commonwealth Edison Co., ARB No. 99-097, ALJ No. 1999-ERA-17 (ARB Sept. 16, 1999), denied Complainant's "Emergency Motion" to reverse the ALJ's order granting a change of location for the administrative hearing. The ALJ had changed the location of the hearing from Alabama (which was within 75 miles of Complainant's residence) to Chicago, upon concluding that the least of amount of inconvenience to parties and witnesses would result if Chicago was the hearing location. The ALJ acknowledged inconvenience to Complainant, but found that such inconvenience was overridden by Respondent's offer to pay Complainant's airfare, lodging, and a per diem.

The ARB held that Complainant's motion was, in effect, an interlocutory appeal of the ALJ's Order Granting Change of Venue. In denying the motion, the ARB observed that it is "particularly chary of interfering with an ALJ's control over the time, place and course of a hearing, but rather should support the sound exercise of an ALJ's broad discretion in this area. See 29 C.F.R. §24.6(c); 29 C.F.R. §18.27(c) (1996)."

[Nuclear & Environmental Digest VIII B 3]
INTERLOCUTORY APPEALS DISFAVORED

In Allen v. EG&G Defense Materials, Inc.,1997-SDW-8 and 10 (ARB Sept. 28, 1998), the ARB interpreted Respondent's Notice of Appeal or Request for Review of Order Granting Motion for Default Judgment as a motion for an interlocutory appeal, and denied the motion based on the longstanding rule that such appeals are disfavored. The ALJ had defaulted Respondent for failure to file an answer to the complaint, and provided the parties time to litigate damages.

[N/E Digest VIII B 3]
INTERLOCUTORY APPEALS DISFAVORED

In Shelton v. Oak Ridge National Laboratory, 95-CAA-19 (ARB June 22, 1998), the ARB denied Complainant's request for reversal of an order issued by the Chief ALJ finding that Respondent's request for a hearing was timely. The ARB characterized the request as an interlocutory appeal, and found that Complainant had not offered any reason to depart from precedent disfavoring such appeals. The ARB noted that Complainant could raise arguments about the timeliness of Respondent's request for a hearing in her brief challenging the ALJ's recommended decision.

[N/E Digest VIII B 3]
INTERLOCUTORY APPEALS

In Beliveau v. Naval Undersea Warfare Center, 97-SDW-1 and 4 (ARB Aug. 14, 1997), Complainant sought an interlocutory appeal to the ARB relating to the alleged breach of a settlement agreement that had been reached prior to completion of a Wage and Hour investigation. The ARB declined to exercise the discretion to entertain an interlocutory appeal on a controlling question of law, finding that the "best policy under these circumstances is to hew to the general principle that interlocutory appeals are strongly disfavored ...." Slip op. at 3 (citations omitted).

INTERLOCUTORY APPEAL
[N/E Digest VIII B 3]

In Holub v. Babcock & King, Inc., 93-ERA-25 (ARB July 8, 1996), the Board followed the Secretary's practice in declining to accept interlocutory appeals because of a strong policy disfavoring piecemeal appeals. The decision leaves open the question whether the Board has the discretion to entertain an interlocutory appeal in an appropriate case.

a
8 b 3
VIII B 3 Interlocutory appeals

Interlocutory appeals are disfavored. See Corder v. Bechtel Group, Inc., 88-ERA-9 (Sec'y Oct. 3, 1988).

VIII B 3 Interlocutory appeal on sealing fact of settlement

In Porter v. Brown & Root, Inc., 91-ERA-4 (Sec'y Sept. 29, 1993), the Secretary issued an order to show cause why the ALJ's order should not be reviewed as the Recommended Decision and Order in this case. The parties had settled the case, but conditioned the settlement on sealing portions of the record.

According to the Secretary, the ALJ had issued an order in which he sealed the terms of a settlement agreement, declined to seal portions of the record which indicated the existence of a settlement agreement, and granted the parties's request that the issue of sealing portions of the record be certified for interlocutory appeal to the Secretary. The Secretary noted that the ALJ issued a separate Order Granting an Interlocutory Appeal, and forwarded under seal all documents indicating the existence of a settlement including the aforementioned order even though he recommending sealing only the agreement itself and denying the request to seal any documents mentioning the settlement.

The Secretary noted the absence of regulatory provisions under either 29 C.F.R. Parts 18 or 24 governing interlocutory appeals to the Secretary, but stated that an ALJ may certify a controlling question of law may to the Secretary pursuant to 28 U.S.C. § 1292(b). Nevertheless, the Secretary declined to exercise any discretion he had to entertain such an appeal, not wishing to set a new precedent. The Complainant had filed a motion to remand because the ALJ had not yet provided a recommended decision. The Secretary proposed, in the interest of administrative efficiency, to treat the ALJ's first order as the Recommended Decision and Order in this case unless the parties show cause why he should not.

VIII B 3 Interlocutory appeals; discovery issues particularly disfavored

In Manning v. Detroit Edison Corp., 90-ERA-28 (Sec'y Aug. 23, 1990), the ALJ ruled that he would not permit discovery concerning a first discharge of Complainant, but certified the case for interlocutory appeal to the Secretary on the ground that it would do little good to compel the Complainant to litigate within the parameters defined since if the ALJ's ruling on discovery was found in error, two trials may result. Manning v. Detroit Edison Corp., 90-ERA-28 (ALJ July 18, 1990).

The Secretary denied permission to file an interlocutory appeal and returned the record to the ALJ. She wrote:

There is no provision, either in 29 C.F.R. Part 24, the regulations implementing the ERA, or the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 C.F.R. Part 18, for interlocutory appeals to the Secretary. The courts, as well as the Secretary, however, have held that there is a "strong policy against piecemeal appeal . . . ." [citations omitted]
In particular, "interlocutory review of discovery orders is highly disfavored. . . ." [citation omitted] Discovery orders are not appealable as final orders under 29 U.S.C. § 1291, and do not fall under any of the exceptions in 29 U.S.C. § 1292(a), or under the "collateral order rule" of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-547. [additional citation omitted] The same is true of an order restricting the scope of the litigation. [citation omitted]
Although the ALJ has certified his ruling to me for an interlocutory appeal, in the manner of 28 U.S.C. § 1292(b), I cannot agree that this is an appropriate case to exercise my discretion to entertain such an appeal. Certification of interlocutory orders for appeal should be used only in extraordinary cases, not merely to provide review of difficult rulings in hard cases. [citation omitted] It has generally been held that rulings on the admissibility of evidence in pretrial orders are not certifiable for interlocutory appeal under 29 U.S.C. § 1292(b). [citations omitted]

VIII B 3 Interlocutory appeal

In xxx v. xxx, xx-ERA-xx (ALJ xxx) (names and dates redacted), the parties presented a settlement agreement to the ALJ. Therein they requested that both the terms of the agreement and the fact that a settlement had been reached be kept confidential. Without the ALJ's issuance of an order sealing these parts of the record, the parties indicated that the settlement would fail. The parties, therefore, requested that if the ALJ denied the sealing of the record, the issue be certified for interlocutory appeal to the Secretary.

The ALJ

found the settlement agreement to be acceptable
concluded that he could not ensure that a sealing of the record would withstand a FOIA request, but that the request for a seal was not mooted by that possibility
concluded that 29 C.F.R. § 18.56 could not be used to place the relevant documents in a restricted access portion of the record because public access to the material was not subject to restriction by law or a protective order entered in the proceedings (a protective order was not authorized by § 18.15 (discovery matters) or § 18.46 (privileges and classified or sensitive materials))
referred to the federal rules pursuant to § 18.1(a), and not finding an applicable rule, further referred to federal common law based on cases indicating that it is appropriate for federal courts to fill in gaps with common law or "judicial legislation"
concluded that the parties have the burden of demonstrating facts compelling the sealing of a record
concluded that the parties' interest in keeping the terms of the agreement confidential outweighed the public's interest in access
concluded that the fact that a settlement had been reached could not be put under seal
concluded that Plumley v. Federal Bureau of Prisons, 86-CAA-6 (Sec'y Apr. 29, 1987), indicated that an ALJ could certify a question for interlocutory appeal in the same manner as a district court pursuant to 29 U.S.C. § 1292(b)
found that § 1292(b) has a three prong test for certification, which the instant case satisfied:
1. there must be a controlling question of law at issue;
2. there must be a substantial ground for difference of opinion;
3. an immediate appeal must materially advance the ultimate termination of the litigation.
certified the case for interlocutory appeal to the Secretary.

VIII B 3 Interlocutory appeals

Under 29 CFR Part 24, a preliminary order or ruling of an ALJ is not subject to interlocutory review by the Secretary. Assuming that Part 24 is simply silent on interlocutory appeals and does not foreclose them, 29 CFR § 18.29(a) authorizes an ALJ to turn to the Rules of Civil Procedure for the United States District Courts. An appropriate action after denying a motion to dismiss could include certifying the question decided by the ALJ's order to the Secretary for interlocutory review, as a district court may do in certifying a question to a court of appeals under 28 U.S.C. § 1292(b) (1982). Absent such a certification, an appeal from an interlocutory order may not be taken. See Pacific Union Conference of Seventh Day Adventists v. Marshall, 434 U.S. 1305, 1306 (1977); Aleut Tribe v. United States, 702 F.2d 1015, 1019 (Fed. Cir. 1983); SEC v. Blazon Corp., 609 F.2d 960 (9th Cir. 1979).

The Secretary declined to accept the Solicitor's invitation to relax or modify the procedure in the interest in justice. The Secretary doubted whether rules governing interlocutory appeals fall within the category of agency rules which may be waived at the agency's discretion.

Plumley v. Federal Bureau of Prisons, 86-CAA-6 (Sec'y Apr. 29, 1987) (order denying interlocutory appeal).

[Editor's note: the Acting Attorney General apparently sought the interlocutory appeal on the ground that the proceeding was disruptive to the federal prison system. The complaint was subsequently settled. See Plumley v. Federal Bureau of Prisons, 86-CAA-6 (Sec'y July 20, 1987) (order of dismissal)]

VIII B 3 Interlocutory appeals disfavored

In Shusterman v. Ebasco Services Inc., 87-ERA-27 (Sec'y July 2, 1987) (order denying remand), the respondent requested a remand based on an assertion that it was not given the opportunity to rebut any of the complainant's allegations prior to the Wage and Hour's determination. The Secretary concluded that since a hearing was already scheduled, a request for a hearing was filed, and that being the case, the determination of the Wage and Hour Administrator was not a final order. See 29 C.F.R. § 24.4(d)(2)(i) and (3)(i). Hence the request was viewed as an interlocutory appeal.

The Part 24 regulations contain no provision for interlocutory appeals and such appeals are disfavored because they result in piecemeal consideration of cases and tend to protract the process. The Secretary, therefore, denied the respondent's request as interlocutory. Cf. Malpass and Lewis v. General Electric Co., 85-ERA-38 and 39 (Sec'y Dec. 20, 1985) (order denying request for stay pending appeal).

VIII B 3 Preliminary ruling on jurisdiction

In Brown v. Holmes & Narver, Inc., 90-ERA-26 (Sec'y June 29, 1993), the Secretary declined to issue a preliminary ruling on jurisdiction because of his disfavor for piecemeal consideration of cases. (the case was before the Secretary on a motion to vacate an earlier order dismissing the complaint -- the Secretary found, however, that this was similar in effect to an interlocutory appeal).

[Editor's note: the ALJ had already ruled against Respondent on the jurisdictional question in an earlier proceeding. Query whether this influenced the Secretary's decision not to review the jurisdictional question.]

VIII.B.3. Interlocutory appeals

Carter v. B & W Nuclear Technologies, Inc., 94- ERA-13 (Sec'y Sept. 28, 1994) (order denying interlocutory appeal), the ALJ concluded that under the circumstances presented it was appropriate to join TVA as a party respondent in this case, pursuant to Rule 19(a) of the Federal Rules of Civil Procedure. TVA sent a letter to the Secretary challenging the ALJ's pre-hearing order. Although TVA asserted that it was not filing an interlocutory appeal, the Secretary stated that:

Pursuant to the regulations at 29 C.F.R. Part 24, it is clear that the ALJ has jurisdiction over this matter until he issues a recommended decision which will be forwarded to the Secretary for issuance of a final decision. As governed by the regulations at 29 C.F.R. Part 24 and Part 18, the ALJ is considered to have all the powers necessary to the conduct of fair and impartial hearings. There is no provision for interlocutory appeals to the Secretary either in the regulations implementing the ERA, 29 C.F.R. Part 24, or in the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 C.F.R. Part 18. Respondent's request that the Secretary make any findings to the contrary, in advance of the ALJ's hearing on the merits and issuance of a recommended decision on the merits, is in the nature of an interlocutory appeal.

The Secretary then declined to entertain TVA's letter/interlocutory appeal.

In a footnote, the Secretary stated that even if he were "to exercise any authority I might have to entertain an interlocutory appeal, I would not grant TVA's request to remand the case to the Wage and Hour division for further consideration of whether they are appropriately named as a co-respondent. The ALJ has provided adequate justification for finding that TVA was sufficiently named in Complainant's initial complaint and TVA has been provided an adequate opportunity for discovery prior to the hearing."

VIII.B.3. Interlocutory appeals

In Pogue v. United States Department of the Navy Mare Island Naval Shipyard, 87-ERA-21 (Sec'y Oct. 24, 1994) (order), the Acting Director of the Office of Administrative Appeals noted that the Secretary had remanded the matter to the ALJ to permit Complainant's former attorneys an opportunity to supplement their request for attorney's fees for work performed after the dates covered by the ALJ's earlier decision and order awarding attorney's fees. Subsequently, the Office of Administrative Appeals received by fax a copy of an order issued by the ALJ, in which she gave notice that she would only submit a recommendation to the Secretary on the additional work before the ALJ but not for work performed before the Secretary and the court of appeals. The Acting Director then directed the ALJ to consider the attorney fee request in its entirety.

[Editor's note: This order seems to be, in effect, the granting of an interlocutory appeal, which is contrary to every other request for Secretarial intervention prior to the ALJ's issuance of a recommended order. The order is also peculiar in that it directs the ALJ to consider fees for work before the Court of Appeals]

VIII.B.3. Interlocutory appeals

In Marthin v. Tad Technical Services Corp., 94-WPC- 1, 2 and 3 (Sec'y Aug. 22, 1994) (order denying interlocutory appeal), the Secretary denied the Respondent's request for an expedited review of the ALJ's post-remand procedures. Although the Secretary did not state a position, he noted that the ALJ had issued an order notifying the parties that the post-remand procedurs remained in effect because Respondent's interlocutory appeal to the Secretary did not stay the scheduled trial date.

VIII. B. 4. Effect of Secretary's actions or inactions

VIII B 4 Secretary's actions or inactions; failure to issue decision within statutory period

In Passaic Valley Sewerage Commissioners v. United States Dept. of Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at 1993 U.S. App. LEXIS 7906), the Court noted that the Secretary had taken seven years after the Recommended Decision & Order to issue a final order. It noted that the parties did not initiate an action to compel the Secretary to issue its decision, and alleged no allegation of prejudice from the delay.

VIII B 4 Failure to issue final order in 90 days

The failure to complete a hearing and issue a Secretary's order within the 90 day statutory period does not deprive the Secretary of jurisdiction. Lockert v. Pullman Power Products Corp., 84-ERA-15 (Sec'y Aug. 19, 1985), slip op. at 1, n.1.

Poulos v. Ambassador Fuel Oil Co., Inc., 86-CAA-1 (Sec'y Apr. 27, 1987) (order of remand).

VIII B 4 Failure to issue final decision within 90 days does not deprive Secretary of jurisdiction

There is no provision in the SDW or the regulations by which a recommended decision of an ALJ becomes a final agency decision after 90 days, unless modified or vacated by the Secretary. Only the Secretary issues final decisions. A failure to issue a decision within the 90 day time limit in the environmental whistleblower statutes does not deprive the Secretary of jurisdiction. McFarland v. City of New Franklin, Missouri, 86-SDW-1 (Sec'y Aug. 17, 1993).

VIII. B. 4. Effect of Secretary's actions or inactions

VIII B 4 90 day time limitation

In Dartey v. Zack Co. of Chicago, 82-ERA-2 (ALJ Jan. 29, 1982), (prehearing order denying motion to dismiss), adopted (Sec'y Apr. 25, 1983), the ALJ in denying a motion to dismiss concluded that the purpose of the employee protection provision of the ERA's very short time limitations was primarily "not to prevent the prosecution of stale claims, but rather to provide a quick and efficacious remedy for an employee who may have been wrongfully thrown out of a job." Hence, the ALJ found that Complainant's filing with OSHA rather than Wage & Hour was a timely filing and that OSHA's memorandum of the complaint satisfied the "in writing" requirement. Moreover, the ALJ noted that the OSHA whistleblower section Complainant did file under is, for all practical purposes, much the same as section 5851, and that Respondent was fully apprised of that filing within 30 days of Complainant's suspension.

In addition, although the DOL did not comply with the 90-day provision for disposition of the claim, he ruled that "[t]he expedited procedure is designed to minimize the hardship that might result to the employee, not to provide a technical "out" for the employer." The ALJ dismissed Respondent's contention that it was prejudiced by the resignation of a material witness because no showing had been made that he was no longer available.

The Secretary, in approving and adopting this ruling, added that in addition to the ALJ's conclusion that filing in the wrong office of the right agency is not fatal, the filing with the wrong agency by a layman who has not slept on his rights can also toll a statute of limitations. Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at n.1.

VIII B 5Allegation of misconduct

[Nuclear & Environmental Digest VIII B 5]
ALLEGATION OF POSSIBLE EX PARTE COMMUNICATION BY ARB MEMBER; NO APPEARANCE OF IMPROPRIETY WHERE ALLEGATION IS BASELESS

In Williams v. Lockheed Martin Corp., ARB Nos. 99-054 and 99-064, ALJ Nos. 1998-ERA-40 and 42 (ARB July 13, 1999), Complainants filed an objection to one member of the ARB deciding any case involving the Department of Energy, OSHA, or Complainants' counsel, based on an memorandum written by OSHA's Director of the Directorate of Compliance Programs to an OSHA Regional Director, apparently in reference to correspondence from Complainants' counsel raising concerns about the Regional Office's performance. The memorandum states, inter alia, that Complainants' counsel had made charges against the ARB member. Complainants' counsel contended that the memorandum's reference to the ARB member "raises a clear question as to whether there was any an [sic] ex parte communication between [the Director of Directorate Compliance Programs] and a member of the ARB or its staff on matters being litigated before them."

The ARB noted that it must consider the allegation carefully, but strongly disagreed that there was a "clear" question as to the existence of any direct or indirect ex parte communication between the Board member and the Director of Directorate of Compliance Programs. The ARB stated that no Board member had communicated with the Director, and it was not aware that any member of its staff had made such a communication. Finding that the allegation of a possible ex parte communication was baseless, the ARB concluded that the objected to member's consideration of Complainants' case would not create an appearance of impropriety.

[Nuclear and Environmental Whistleblower Digest VIII B 5]
ALLEGATION OF BIAS ON PART OF ARB MEMBERS; APPLICABLE LAW, PRESUMPTION OF FAIRNESS

In In re Slavin, ARB No. 04-172 (ARB Oct. 20, 2004), an attorney who was responding the to ARB's order to show cause why the ARB should not give reciprocal effect to a state court's order suspending the attorney from the practice of law argued that the ARB members were biased against him. The ARB wrote:

With regard to the Respondent's more general contention that the ARB members are biased against him, we point out that Administrative Review Board judges, like administrative law judges and other quasi-judicial decision-makers, are presumed to act impartially. See Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). To overcome this presumption of fairness, a party must show that a decision-maker has demonstrated prejudgment of the facts and law involved in the case, see Cinderella Career & Finishing Schools, Inc. v. Federal Trade Comm'n, 425 F.2d 583, 590-91 (D.C. Cir. 1970), or has a conflicting interest that is likely to influence their decision, MFS Sec. Corp. v. Securities and Exch. Comm'n, 380 F.3d 611, 617-18 (2d Cir. 2004). As a corollary to the presumption of fairness, the administrative agency must ensure the appearance of impartiality, as well as observing the procedural safeguards to due process. Cinderella Career, 425 F.2d at 591 and authorities there cited. Although a party who challenges the impartiality of an administrative decision-maker is thus not required to establish proof of actual partiality, Utica Packing Co. v. Block, 781 F.2d 71, 77 (6th Cir. 1986), the Respondent has failed to raise allegations that indicate either actual bias or the appearance of same.6/
_________
6/ The ARB is subject to not only the foregoing standards developed in the Federal courts to ensure fairness in agency decision-making but also to the regulations promulgated under the Ethics in Government Act of 1978, as amended, 5 U.S.C.A. App. 4 (West 1996 and Supp. 2002), and the conflict of interest provisions at 18 U.S.C.A. §§ 207, 208 (West 2000 and Supp. 2004), which are found at 5 C.F.R. Parts 2635, 2640, 2641 and 5201. Those regulations require, among other things, the disqualification of Federal employees from participation in matters that pose a conflict of interest or the possibility of an appearance of impropriety. The detailed guidance provided by those regulations aids the ARB in meeting the due process requirement of fairness in appearance as well as in fact. None of the criteria provided by those regulations suggests that it would be improper for any member of the ARB to participate in this decision concerning whether to impose reciprocal discipline.

[Nuclear and Environmental Digest VIII.B.5.]
RECUSAL OF ARB MEMBER; ALLEGATION OF APPEARANCE OF IMPROPRIETY

In Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy, ARB Nos. 99-002, 99-063, 99-067, 99-068, ALJ Nos. 1998- CAA-10 and 11, 1999-CAA-1, 4 and 6 (ARB Oct. 31, 2000), Complainant alleged that one of the ARB Board members should not be involved in deciding the case by reason of her name being mentioned in a memorandum written by an OSHA Compliance Director in response to Complainant's counsel's letter raising concerns about OSHA whistleblower investigations. In the Memorandum, the Compliance Director stated that Complainant's counsel had previously written to the Secretary with similar concerns, and asked for the recusal of administrative law judges and made charges against the Chief ALJ and a member of the ARB. Complainant alleged that the memorandum raised a "clear" question as to the existence of ex parte communication between the ARB member and the Compliance Director.

The ARB noted that it must carefully consider the allegation that the ARB member's participation in Complainant's case would raise an appearance of impropriety, but found no evidence support a conclusion that the ARB member or any other member of the ARB's staff had communicated with the Compliance Director. The ARB found the allegation of ex parte communication to be baseless.

[Nuclear & Environmental Digest VIII B 5]
QUO WARRANTO HEARING; APPEARANCE OF IMPROPRIETY WHERE ALLEGATION MADE THAT ARB MEMBER ENGAGED IN EX PARTE COMMUNICATION

In Moore v. U.S. Dept. of Energy, ARB No. 99-094, ALJ No. 1999-CAA-14 (ARB July 14, 1999), Complainant filed a motion for a Quo Warranto Hearing relating to his allegation that an ARB member, or ARB staff member, had communicated ex parte with an OSHA Director. The ARB denied the motion, and a related motion to compel DOL and DOE employees to answer questions. The ARB observed that"[q]uo warranto is 'the prerogative writ by which the government can call upon any person to show by what warrant he holds a public office or exercises a public franchise.'" (citation omitted). The ARB denied the motions because agencies can exercise only the powers granted by statute, and the environmental statutes under which Complainant sought relief do not confer quo warranto jurisdiction upon the ARB.

The ARB, nevertheless, considered the allegation the ARB's member's participation in the review would raise an appearance of impropriety, but found Complainant's allegation baseless.

[Nuclear & Environmental Digest VIII B 6]
ORAL ARGUMENT; DISCRETION OF ARB

In Varnadore v. Oak Ridge National Laboratory, ARB No. 99-121, ALJ Nos. 1992-CAA-2 and 5, 1993-CAA-1, 1994-CAA-2 and 3, 1995-CAA-1 (ARB June 9, 2000), the ARB held that it is within its discretion whether to grant a request for oral argument.

VIII C 1 Enforcement of Secretary's orders by district court; ministerial duty

Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011, 92 L.Ed.2d 724, 106 S. Ct. 3311 (1986).

The statutory language of ERA is clear that a district court shall enforce the Secretary's orders and that this duty is a ministerial one. 42 U.S.C. 5851(d). An appeal from the Secretary's decision can lie only with the court of appeals. 42 U.S.C. 5851(c)(1).

[Nuclear and Environmental Whistleblower Digest VIII C 1]
OPTION TO REMOVE TO FEDERAL DISTRICT COURT IF DOL DOES NOT ISSUE A FINAL DECISION WITHIN ONE YEAR OF THE FILING OF THE COMPLAINT; ENERGY POLICY ACT OF 2005

On August 8, 2005, President Bush signed the Energy Policy Act of 2005. The Act amends the Energy Reorganization Act to permit removal to federal district court if the Department of Labor has not issued a final decision within one year after the filing of the complaint. The Act does not specify an effective date for the amendments in Section 629.

[Nuclear & Environmental Digest VIII C 1]
SETTLEMENT; POST-JUDGMENT INTEREST; AUTHORITY OF DISTRICT COURT TO ENFORCE

In Pillow v. Bechtel Construction, Inc., No. 98-4217 (11th Cir. Jan. 28, 2000) (case below ARB No. 97-040, ALJ No. 1987-ERA-35), the plaintiffs filed an action in federal district court seeking interest on damages they received pursuant to a settlement of a ERA whistleblower complaint. The district court dismissed for lack of jurisdiction, and the 11th Circuit affirmed. First, the settlement made no provision for post-judgment interest. Since the Secretary's order approving the settlement likewise did not order post-judgment interest, the federal courts did not have jurisdiction as there was no order of the Secretary of Labor to enforce. Second, the court rejected plaintiffs' argument that post-award interest accrues as a matter of law on agency awards because plaintiffs did not cite to and the court could not find any authority to support that proposition.

[Nuclear & Environmental Digest VIII C 1]
EXHAUSTION OF ADMINISTRATIVE REMEDIES; ISSUE OF UNDERLYING JURISDICTION; GENERAL REQUIREMENT THAT AGENCY BE GIVEN INITIAL OPPORTUNITY TO DETERMINE WHETHER IT HAS JURISDICTION

In Martin Marietta Energy Systems, Inc. v. Martin, 909 F. Supp. 528 (E.D. Tenn. 1993) (related administrative case 1993-CAA-4), plaintiffs [Respondents in the administrative action] moved in Federal district court for a preliminary injunction against further processing of Complainant's whistleblower complaint based on the theory that exhaustion of administrative remedies was not necessary because there had been a patent violation of DOL's authority, to wit: the complaint is not subject to DOL jurisdiction because Complainant was never an employee of any of the plaintiffs, and Complainant's activities investigating the etiology of certain diseases is not protected activity. The district court rejected this argument, noting authority to the effect that even when the jurisdiction of the agency is at issue, the exhaustion doctrine generally requires that the agency have the opportunity to determine initially whether it has jurisdiction.

[N/E Digest VIII C 1]
INITIAL CLAIM FOR VIOLATION OF ERA WHISTLEBLOWER PROVISION SHOULD BE PRESENTED TO DOL RATHER THAN FEDERAL DISTRICT COURT

In United States v. Regan, 1998 WL 341815 (N.D. Ill. June 12, 1998)(unpublished), the plaintiff claimed that he was entitled to bring a whistleblower claim under 42 U.S.C. § 5851 based on the allegation that the defendant drove the plaintiff out of the nuclear industry. The court dismissed this claim because, inter alia, the court's jurisdiction is limited to review of certain orders of the Secretary of Labor. The court wrote: "Initial claims for violations of § 5851 are to be presented to the Secretary of Labor with court review going directly to the Court of Appeals. 42 U.S.C. §§ 5851(b), (c); [Kahn v. Secretary of Labor, 62 F.3d 271, 275 (7th Cir. 1995)]."

VIII C 1 Removal jurisdiction

It would flout congressional intent to give the federal courts original (and hence removal) jurisdiction based on whistleblower statutes that limit the federal remedy to an administrative action. Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir. 1988).

VIII c 1 Removal jurisdiction

Lawyer alleged that he was fired because he insisted that the company he was in-house counsel for comply with various state and federal environmental and securities laws and because he would not act in violation of those laws. He brought wrongful discharge action against former employer. Employer removed to federal court. The court concluded that the federal issues in employee's claim are not in the forefront of the case, but they are more collateral in nature. Furthermore, the whistleblower statutes promote enforcement of environmental laws by protecting employees who aid the government enforcement agency. Thus, in this Texas common law wrongful discharge case, the role of issues of federal law are more collateral than in the forefront, hence, removal was improper. Willy v. Coastal Corp., 855 F.2d 1160, 1171 (5th Cir. 1988).

VIII C 2 Appellate courts have exclusive original jurisdiction for review of DOL's final decision

Rhode v. City of West Lafayette, 1994 U.S. App. LEXIS 6996 (7th Cir. Apr. 5, 1994) (DOL Case NO. 91-SWD-3)

The court found that the federal appellate courts have exclusive original jurisdiction for review of the Secretary's final decisions in cases arising under the SWDA and the CWA. Under the SWDA, "judicial review of the Secretary's decision may be obtained only in the United States Court of Appeals for the District of Columbia"; other federal courts of appeals may review the Secretary's final decisions under limited circumstances. 1994 U.S. App. LEXIS 6996, at 2. See 42 U.S.C. § 6976.

Similarly, under the CWA, a person can obtain judicial review of a final Secretary's decision only in "the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such businesses." 1994 U.S. App. LEXIS 6996, at 2, citing 33 U.S.C. § 1367, 1369.

[Nuclear and Environmental Whistleblower Digest VIII C 2]
JURISDICTION OF COURT OF APPEALS IN CERCLA APPEAL WHERE THE FACTUAL BACKGROUND WAS COMMON WITH OTHER ENVIRONMENTAL LAWS PROVIDING FOR DIRECT CIRCUIT COURT APPEAL

In Erickson v. USDOL, No. 06-14120 (11th Cir. July 14, 2008) (unpublished)(per curiam) (case below ARB Nos. 03-002, 03-003 ALJ Nos. 1999-CAA-2, 2001-CAA-9 and 13, 2002-CAA-3 and 18), the Complainant filed her complaint under CERCLA and several other environmental whistleblower laws. Each of the laws except CERCLA granted jurisdiction to the circuit courts to review the Secretary of Labor's orders. CERCLA, however, grantedjurisdiction to the federal district courts. The 11th Circuit joined the 9th and 10th Circuits in holding that a court of appeals has jurisdiction to review the DOL orders even insofar as they arise under CERCLA where the Complainant's allegations all arose from a common factual background and were nonspecific to the statutes under which she brought. See Anderson v. Metro Wastewater Reclamation District, No. 03-9570 (10th Cir. Sept. 2, 2005) ; Ruud v. USDOL, 347 F.3d 1086 (9th Cir. 2003).

[Nuclear and Environmental Whistleblower Digest VIII C 2]
JURISDICTION OF COURT OF APPEALS IN CERCLA APPEAL; ALTHOUGH CERCLA PROVIDES FOR INITIAL REVIEW IN DISTRICT COURT, DIRECT REVIEW BY COURT OF APPEALS APPROPRIATE WHERE COMMON FACTS AND ISSUES AND ANOTHER WHISTLEBLOWER LAW PROVIDING FOR COURT OF APPEALS REVIEW IS INVOLVED

In Anderson v. Metro Wastewater Reclamation District, No. 03-9570 (10th Cir. Sept. 2, 2005) (case below ARB No. 01-103, ALJ No. 1997-SDW-7), the Tenth Circuit was confronted with an appeal of a DOL determination on the employee protection provision of seven environmental laws involving a common factual background and a common legal question. Six of the laws provided for review in the courts of appeal, but CERCLA provided for district court review. 42 U.S.C. §§ 9610(b), 9613(b). Citing Ruud v. USDOL, 347 F.3d 1086 (9th "Cir. 2003) (involving an appeal under CAA and CERCLA), the court determined that consolidated review before the court of appeals was appropriate.

[Nuclear & Environmental Whistleblower Digest VIII C 2]
COURT OF APPEALS JURISDICTION; WHERE AGENCY DECISION IS BASED ON MORE THAN ONE STATUTE, ONE OF WHICH PROVIDES FOR DIRECT APPEAL TO THE COURT OF APPEALS, COURT OF APPEALS SHOULD ENTERTAIN CONSOLIDATED REVIEW

In Ruud v. USDOL, 347 F.3d 1086 (9th Cir. 2003) (Case below ARB No. 99 023, ALJ No. 1988 ERA 33), the Complainant had taken an appeal of the ARB's decision to approve the settlement of his case, which had been based on the whistleblower provisions of both the CAA and the CERCLA. While the CAA provides for direct review in the court of appeals, CERCLA does not. The court held that "the court of appeals should entertain a petition to review an agency decision made pursuant to the agency's authority under two or more statutes, at least one of which provides for direct review in the courts of appeals, where the petition involves a common factual background and raises a common legal issue." The court declined to decide whether its jurisdiction in such a situation is concurrent or exclusive.

[N/E Digest VIII C 2]
APPELLATE JURISDICTION

In Williams v. Metzler, No. 97-3127, 1997 WL 793315 (3rd Cir. Dec. 30, 1997) (case below, ARB No. 96-160, ALJ No. 94-ERA-2), the ARB had entertained Complainant's motion to enforce a settlement agreement because of a clause in the agreement purportedly giving DOL the authority to enforce the agreement, but found that employer had not breached the agreement. Although the Third Circuit held, sua sponte, that DOL did not have the authority under the ERA to make binding findings on whether a settlement agreement was breached because the enforcement function lies in federal district court, it addressed Respondent's contention that the Court of Appeals did not have jurisdiction to review the ARB's action on the theory that the ARB's action was not among those authorized by 42 U.S.C. § 5851(b) (Secretary of Labor may issue orders granting relief, denying the complaint, or settling the dispute). The court, noting that jurisdictional provisions are to be construed generously in the absence of clear and convincing evidence of a contrary legislative intent, held that it had jurisdiction to review the Secretary's action.

Respondent also questioned the Third Circuit's jurisdiction based on the theory that the Secretary's action were, in effect, a decision not to begin a suit in the district court, i.e., a discretionary and unreviewable decision not to enforce. See Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). The court, however, distinguished Chaney, and held that the Secretary's actions were reviewable because DOL had taken affirmative steps to adjudicate a breach of contract claim, and made findings that determined the amount paid to Complaint, i.e., the actions directly affected property rights. The court also found that the stronger indication in the record was that the Secretary had considered the administrative proceedings to be a formal adjudication rather than an informal and nonbinding proceeding.

VIII C 2 a Standard of review

Petitioner sought review of Secretary's dismissal of her complaint and rejection of an ALJ's determination that the Navy had unlawfully retaliated against her for engaging in whistleblowing activity protected under CERCLA, WPCA, RCRA, and TSCA. The court stated that the applicable legal standard for reviewing the Secretary's decision is under the Administrative Procedure Act, 5 U.S.C. § 706. The court reversed and remanded the Secretary's decision and stated: "[the Secretary's decision] must therefore be set aside if it is unsupported by substantial evidence or if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Lockert v. United States Depart. of Labor, 867 F.2d 513, 516-17 (9th Cir. 1989) (setting forth the standard of review for whistleblower cases under the ERA). Pogue v. United States Dept. of Labor, 940 F.2d 1287, 1289 (9th Cir. 1991).

[Nuclear & Environmental Digest VIII C 2 a]
COURT OF APPEALS' STANDARD OF REVIEW

Excerpt from Trimmer v. U.S. Dept. of Labor, No. 97-9544 (10th Cir. Apr. 6, 1999) (case below 93-CAA-9 and 93-ERA-5):

The Secretary's decision is reviewed under § 706 of the Administrative Procedure Act. See 42 U.S.C. § 5851(c)(1) (incorporating standards of 5 U.S.C. § 706(2)). Consequently, the decision will be set aside only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See 5 U.S.C. § 706(2)(A). Consistent with this level of scrutiny, the Secretary's factual determinations will be set aside only if they are unsupported by substantial evidence. See id. § 706(2)(E). The substantial-evidence standard does not allow a court to displace the agency's " 'choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'" Matters of law are reviewed de novo, giving deference to the Secretary's construction of the ERA if reasonable. Because the Secretary's opinion is in agreement with and based in part on the ALJ's credibility determinations, it is entitled to great deference. This court reviews the entire record, including the ALJ's recommendation and any evidence contrary to the Secretary's decision.

(case citations omitted).

VIII.C.2.a. Standard of review of Secretary's decisions

In Billings v. Reich, 1994 U.S. App. LEXIS 13250 (6th Cir. 1994), the court affirmed the Secretary's dismissal of the petitioner's complaints. On review, the court reviewed the Secretary's decision under the APA, which requires that the agency's decisions not be "arbitrary, capricious, or an abuse of discretion." 5 U.S.C. § 706(2)(A). The court stated that "an abuse of discretion will be found if there is no evidence to support the agency's decisions or it is based on a misunderstanding of the law." Id. 4, citing Oakland County Bd. of Comm'rs v. United States Dep't of Labor, 853 F.2d 439, 442 (6th Cir. 1988). Since the decision to dismiss the complaints was upheld, the petitioner's motion to be substituted as the party representative of the deceased complainant became moot and hence was not addressed by the court.

VIII.C.2.a. Standard of review of Secretary's decisions

The standard of review of agency decisions in the federal courts is governed by the Administrative Procedure Act. Specifically, the courts should not overturn an agency's decisions unless a decision appears to be "arbitrary, capricious, or a clear abuse of discretion." Tennessee Valley Authority v. Reich, 1994 U.S. App. LEXIS 13255, 3 (6th Cir. 1994), citing Ohio v. Ruckelshaus, 776 F.2d 1333, 1339 (6th Cir. 1985), cert. denied, 476 U.S. 1269 (1986). Similarly, the courts should defer to the agency's interpretation of its own regulations unless the interpretation is "plainly erroneous or inconsistent with the regulation." TVA v. Reich, 1994 U.S. App. LEXIS at 3, citing Navistar Int'l Transp. v. United States EPA, 858 F.2d 282 286 (6th Cir. 1988), cert. denied, 490 U.S. 1039 (1989).

VIII C 2 a Credibility determinations; Standard of review

Petitioner sought review of Secretary's dismissal of her complaint and rejection of an ALJ's determination that the Navy had unlawfully retaliated against her for engaging in whistleblowing activity protected under CERCLA, WPCA, RCRA, and TSCA. The court stated that special deference is to be given the ALJ's credibility judgments, Curran, 714 F.2d 913 (9th Cir. 1983), "for the obvious reason that he or she 'sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records.'" Penasquitos Village, 565 F.2d at 1077 (quoting NLRB v. Walton Manuf. Co., 369 U.S. 404 (1962)). The court held that since the ALJ necessarily evaluated the key witnesses' credibility in determining his motives for his reaction to the petitioner's whistleblowing activity, the Secretary's disregard of this finding is unsupported by the record. See Loomis Courier Serv., Inc., 595 F.2d 491 (9th Cir. 1979). Pogue v. United States Dept. of Labor, 940 F.2d 1287, 1290 (9th Cir. 1991).

VIII C 2 a Standard of review heightened when ALJ and Secretary disagree over facts and credibility of witnesses

Disagreements between the Secretary and the ALJ involving questions of fact and credibility may lead the reviewing court to examine the evidence more critically in determining whether substantial evidence supports the Secretary's decision. The reviewing court is not required to choose between the ALJ's and Secretary's determinations. Rather, the court merely determines whether the Secretary's choices are supported by analysis that is articulate, cogent, and reliable. The amount of deference given to the ALJ may be affected by the length and complexity of the trial. Bechtel Construction Co. v. Secretary of Labor, No. 94-4067 (11th Cir. Apr. 20, 1995) (available at 1995 U.S. App. LEXIS 9029) (case below 87-ERA-44) (citations omitted).

VIII C 2 a Appellate review where agency rejects ALJ's conclusions

The Court of Appeals' review of the Secretary's order is controlled by the Administrative Procedure Act under which an agency decision will be set aside if it is unsupported by substantial evidence or is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. §§ 706(2)(A)-(E). In reviewing an agency's decision, the Court of Appeals considers the entire record before it, including the ALJ's recommendation and any evidence that is contrary to the agency's determination. While much deference is usually accorded to an agency's expertise and discretion when the agency adopts the findings of the ALJ, a slightly different rule applies when the administrative agency rejects the ALJ's findings. An agency departing from the findings of the ALJ must show that it gave attentive consideration to the ALJ's conclusions. Such consideration may be found if the agency decision reflects an awareness of the ALJ's findings and gives reasons for reaching a different conclusion with respect to those findings. [citations omitted]

In the case before the court, the court concluded that the ALJ's finding in regard to whether the Respondent knew that the Complainant was cooperating with the government was correct, and rejected the Secretary's conclusion that the Complainant's actions were too ambiguous and enigmatic to put the company on notice of his cooperation with the government. During a meeting with company officials, the Complainant had refused to comment about a statement from a contractor who related Complainant's statement to him about company fed heptachlor-contaminated chicken feed. When asked who advised him not to comment, the Complainant produced a business card of a government agent.

The court noted that the presence or absence of retaliatory motive is a legal conclusion and is provable by circumstantial evidence even if there is testimony to the contrary by witnesses who perceived lack of such improper motive. It noted that the company was aware that operations at its plant were being investigated, and concluded that this information, coupled with the business card incident, supported the reasonable inference that the Complainant was cooperating with the government in its investigation. The court also found it significant that the Complainant was suspended just hours after meeting with company officers, and discharged eleven days later.

Simon v. Simmons Foods, Inc., 1995 U.S. App. LEXIS 3715 (8th Cir. 1995) (case below 87-TSC-2).

[Nuclear and Environmental Whistleblower Digest VIII C 2 b]
COURT OF APPEALS DEFERENTIAL REVIEW; WHERE ARB'S DISAGREEMENTS WITH THE ALJ RELATED TO INFERENCES TO BE DRAWN FROM EVIDENCE OR WERE FULLY EXPLAINED, COURT OF APPEALS WILL AFFIRM ARB'S REASONABLE DETERMINATION OF THE MERITS

The 11th Circuit in Erickson v. USDOL, No. 06-14120 (11th Cir. July 14, 2008) (unpublished)(per curiam) (case below ARB Nos. 03-002, 03-003 ALJ Nos. 1999-CAA-2, 2001-CAA-9 and 13, 2002-CAA-3 and 18), affirmed the ARB's decision even though the ARB had disagreed with the ALJ on several points, where most of the disagreements pertained to inferences to be drawn from the evidence, and the ARB had explained its reasons for rejecting the ALJ's conclusions. The court, applying a deferential standard of review, found that the ARB's determination of the merits was supported by substantial evidence and was reasonable.

VIII C 2 b Deference to ALJ's credibility determinations

In The Detroit Edison Co. v. Secretary, United States Dept. of Labor, No. 91-3737, slip op. (6th Cir. Apr. 17, 1992) (per curiam) (unpublished) (available at 1992 U.S. App. LEXIS 8280), the Respondent noted that it took issue with much of the evidentiary findings made by the ALJ. The Sixth Circuit, however, refused to overturn the ALJ's credibility determination since there was substantial evidence to support those determinations.

[N/E Digest VIII C 2 b]
HEIGHTENED REVIEW WHERE ALJ AND SECRETARY DISAGREED

A court of appeals reviewing a Secretary of Labor decision under 42 U.S.C. § 5851(c) reviews matters of law de novo, keeping in mind the deference paid to the Secretary of Labor in construing the statutes he or she is charged with administering. On matters of fact, the court uses a substantial evidence standard of review. 5 U.S.C. § 706(2)(E). The court asks whether such relevant evidence exists " 'as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)). Where the ALJ and the Secretary of Labor differed, the court reviews the Secretary's order "more critically." Ultimately, however, the decision is the Secretary's, and court only ensures that the Secretary's conclusion, if different from the ALJ's, is supported by articulate, cogent, and reliable analysis. Stone & Webster Engineering Corp. v. Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997)(case below 93-ERA-44).

VIII C 2 b APPELLATE REVIEW; DEFERENCE TO SECRETARY OF LABOR

In Kahn v. United States Secy. of Labor, 1995 U.S. App. LEXIS 24111 (7th Cir. 1995), the court indicated that when reviewing the Secretary of Labor's final decision in an ERA whistleblower case, Congress' grant of power to the Secretary to review such claims was a recognition of the agency's special competence to handle those matters, which compels deference from the courts when reviewing how that power is exercised.

VIII C 2 b Deferences to inferences of Secretary not ALJ

Deference is accorded to the inferences drawn by the Secretary from the evidence, not to those of the administrative law judge. Lockert v. United States Dept. of Labor, 867 F.2d 513 (9th Cir. 1989).

VIII C 2 b Statutory interpretation

In Passaic Valley Sewerage Commissioners v. United States Dept. of Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at 1993 U.S. App. LEXIS 7906), the Court stated that where the facial language of the Clean Air Act's whistleblower protection provision admits of more than one interpretation, it is compelled to uphold the Secretary's interpretation if it is based on a permissible construction of the statute.

VIII C 2 c Remand not an appealable final order

The Secretary's order of remand in an ERA case is not an appealable final order. See Raymond Kaiser Engineers, Inc. v. United States Dept. of Labor, No. 85-7472 (9th Cir. Dec. 13, 1985) (order of dismissal) (case below 1984-ERA-5).

[Nuclear & Environmental Whistleblower Digest VIII C 2 c]
REVIEWABLE FINAL AGENCY ACTION; KYNE EXCEPTION; COLLATERAL ORDER DOCTRINE

In Exxon Chemicals America v. Chao, No. 00 60569 (5th Cir. July 30, 2002) (case below 1993 ERA 6), the Fifth Circuit determined that an ARB remand order to the presiding ALJ is not a reviewable final agency action. In this regard, the court found that (1) the ARB had not issued a decision definitively resolving the merits of the case; (2) the ARB's remand order did not have a substantial effect on the Respondent's rights such that they cannot be altered by subsequent action by the ARB; and (3) Respondent may ultimately prevail in front of the ARB, mooting any current challenge to the ARB's findings.

Respondent alternatively asserted that the Fifth Circuit had authority to review the remand order pursuant to the exception to the final agency action rule set forth in Leedom v. Kyne, 358 U.S. 184 (1958) or under the collateral order doctrine. The court noted that "the focus of the Kyne exception is whether 'an agency exceeds the scope of its delegated authority or violates a clear statutory mandate.'" Respondent conceded that the Secretary could remand a case to the ALJ, but argued that the ARB had not been delegated this power. The court, however, ruled that the ARB's "remand power is procedural in nature, and therefore is within the scope of this delegation of authority." The court held that even if the ARB exceeded its delegated authority by remanding the case, it still did not have jurisdiction to review that decision under Kyne because the Respondent could obtain meaningful judicial review of the ARB's decision after this case ultimately is decided on the merits.

The Respondent argued that the collateral order doctrine applied because "the invalidity of the ARB's remand order is effectively unreviewable on appeal from a subsequent final decision." The court dismissed this argument, writing: "If the ARB rules against Exxon, Exxon will have an adequate opportunity to challenge both the ARB's final decision, as well as the propriety of its remand order."

[Nuclear & Environmental Digest VIII C 2 c]
APPELLATE REVIEW; COLLATERAL REVIEW DOCTRINE; TRIBAL IMMUNITY

In The Osage Tribal Council v. USDOL, No. 97-9564 (10th Cir. Aug. 4, 1999)(case below ARB No. 96-137, ALJ No. 1995-SDW-1), the 10th Circuit held that the denial of tribal immunity by an agency adjudicative order is an immediately appealable collateral order.

[Nuclear & Environmental Digest VIII C 2 c]
FINALITY OF ARB DECISION WHERE COLLATERAL ISSUE OF ATTORNEY FEES AND COSTS REMAINS

In Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), the ARB concluded its decision with a note that because the decision resolved all issues except the collateral issue of attorney fees and costs (upon which the ARB directed the ALJ to issue a supplemental decision), the decision was final and appealable. Citing Fluor Constructors, Inc. v. Reich, 111 F.3d 979 (11th Cir. 1997)(case below 88-ERA-29).

[N/E Digest VIII C 2 c]
APPEAL OF SECRETARY'S FINAL ORDER; TIMELINESS IS CALCULATED BASED ON DECISION ON MERITS; COLLATERAL DETERMINATIONS, SUCH AS ATTORNEY FEE REQUESTS, ARE NOT USED

In Fluor Constructors, Inc. v. Reich, No. 95-2827, 1997 U.S. App. LEXIS 9388 (11th Cir. Apr. 15, 1997) (case below 83-ERA-2), the Eleventh Circuit held that the Supreme Court's decision in Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S. Ct. 1717, 100 L. Ed. 2d 178 (1988), regarding the collateral nature of fee determinations applies to administrative cases. The court noted that a party is required to file a petition for review of a final decision of a Secretary "within the time prescribed by law," Fed.R.App.P. 15(a), and that the ERA provides that petitions for review in the United States courts of appeals "must be filed within sixty days from the issuance of the Secretary's order." 42 U.S.C. § 5851(c)(1).

In Budinich, the Supreme Court held that both the imposition and the amount of attorney's fees are always collateral to the merits of an action; for appealability purposes a decision on the merits is a final decision even when a request for attorney's fees remains for adjudication. On this basis, the Eleventh Circuit held that for the purposes of an appeal from an administrative agency, both the imposition and the amount of attorney's fees are collateral to the merits of an action. Although there is a "unique circumstances" exception, it is limited to situations "where a party has performed an act which, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done." Osterneck v. Ernst & Whinney, 489 U.S. 169, 179, 109 S. Ct. 987, 993, 103 L. Ed. 2d 146 (1989).

The Eleventh Circuit noted that Appellant's attorney in the instant case may have been misled by the Secretary's titling of the final decision on the merits as "Decision and Order of Remand," and the titling of the order following the remand for a determination of attorney's fees, "Final Decision." Nonetheless, the court held that the fact that Secretary's final order on the merits was styled as a remand for attorney's fees is not significant for jurisdictional purposes.

VIII C 2 c Appealable final order

A remand order by the Secretary is not an appealable order under section 211(c) of the Energy Reorganization Act, nor under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). Carolina Power & Light Co. v. United States Dept. of Labor, 1995 U.S. App. LEXIS 381 (4th Cir. 1995) (case below, Debose v. Carolina Power & Light, 92-ERA-14).

In Carolina Power, the Secretary disapproved a settlement, and remanded the complaint to the ALJ. The court noted that the Respondent could preserve any objections, and challenge the Secretary's remand order once the issue is fully adjudicated, even if the final action is approval of a revised settlement agreement.

VIII.C.2.d. Timely filing of appeal; Sixth Circuit's position

Under the ERA, a complainant must file a petition for review of an adverse decision by the Secretary "within sixty days from the issuance of the Secretary's order." 42 U.S.C. § 5851(c)(1). In Bartlik v. United States Dep't of Labor, 19994 U.S. App. LEXIS 24497, 1994 FED App. 319 (6th Cir. 1994), the Sixth Circuit dismissed the complainant's first petition for lack of jurisdiction because the complainant filed his petition on the sixty-first day after the Secretary issued the decision. Notwithstanding Rule 26(a) of the Federal Rules of Appellate Procedure which provides for the extension of a statutory filing period until the next business day in the event that the last day falls on a Saturday, Sunday, or legal holiday, the court restated its position that to allow such an extension would be to impermissibly enlarge the court's jurisdiction. In support of its decision, the court relied on its interpretation of Federal Rule of Civil Procedure 82 in Rust v. Quality Car Corral, Inc., 614 F.2d 1118 (6th Cir. 1980) and In re Butcher, 829 F.2d 596 (6th Cir. 1987). The court rejected the complainant's distinction between the cited cases and his own that the other two cases involved an appeal to a district court from an agency while here the appeal was directly to the circuit court. The court did note, however, it would allow a Rule 26(a) extension where the statutory filing period was procedural rather than jurisdictional.

[Editor's note: The Sixth Circuit's position is inconsistent with the Ninth Circuit and the Fifth Circuit, both of which have granted Rule 26(a) extensions from agency appeals. Funbus Systems, Inc. v. California Public Util. Comm'n, 801 F.2d 1120 (9th Cir. 1986); Miller v. United States Postal Serv., 685 F.2d 148 (5th Cir. 1982), cert. denied, 461 U.S. 916 (1983).]

[Nuclear and Environmental Whistleblower Digest VIII C 2 d]
TIMELINESS OF PETITION FOR REVIEW BY COURT OF APPEALS; DATE OF ISSUANCE RATHER THAN POSTMARK GOVERNS

In Dierkes v. USDOL, 397 F.3d 1246 (9th Cir. 2005) (case below ARB No. 02-001, ALJ No. 2000-TSC-2), the Ninth Circuit held that the time period for petitioning the court for review of an ARB decision under the whistleblower provision of the TSCA runs from the date of "issuance" (i.e., the date printed on the first page of the decision) rather than the postmark. See 15 U.S.C. § 2622(c)(1); 29 C.F.R. § 24.8(c).

VIII C 2 d PETITION FOR JUDICIAL REVIEW; TIMELINESS

In Bartlik v. United States Dept. of Labor, 62 F.3d 163 (1995), the court held that Civil Rule 6(a) and Appellate Rule 26(a) do not expand or enlarge the court's jurisdiction, but simply provide the court and the parties with a means of determining the beginning and end date of a statute of limitations prescribed elsewhere in law. In Bartlik, a 42 U.S.C. § 5851 action, the terminal date for filing a petition for a review fell on a Sunday by the calendar. The Court applied Rule 26(a) to find that a filing the following Monday was timely.

VIII C 2 d Time frame to file petition for review is jurisdictional

The requirement to file a petition for review with the appropriate court of appeals within sixty days of the Secretary's final order in environmental whistleblower case is jurisdictional; thus the time for filing a petition for review may not be enlarged. See Fed. R. App. P. 26(b).

Simon v. Simmons Foods, Inc., 1995 U.S. App. LEXIS 3715 (8th Cir. 1995) (case below 87-TSC-2).

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