ARB CASE NO. 98-077
ALJ CASE NO. 97-ERA-32
DATE: December 29, 2000
In the Matter of:
BILLIE W. CHILDERS, JR.,
COMPLAINANT,
v.
CAROLINA POWER & LIGHT COMPANY,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Billie W. Childers, Jr., Pro Se, Sardinia, Ohio
For the Respondent: Douglas E. Levanway, Esq., Chad M. Knight, Esq.,
Wise Carter Child & Caraway, Jackson,
Mississippi
FINAL DECISION AND ORDER
This case arises under §5851 of the Energy Reorganization Act, 42
U.S.C.A. §5851 (West 1995), and its implementing regulations at 29 C.F.R. Parts 18 and
24 (2000). Section 5851 provides a remedy for employees in the nuclear power industry who
suffer employment discrimination because they complain about unsafe conditions.
1 References to ALJ Recommended Decisions
and Orders are to opinions as published on the Department of Labor's World Wide Web site
www.oalj.dol.gov. In this decision we use the OALJ citation format set forth at www.oalj.dol.gov/cite.htm.
2 The whistleblower protection
provision at §5851 of the Energy Reorganization Act itemizes the kinds of employee activities that are
"protected activities" for purposes of §5851 claims:
(a) (1) No employer may discharge any employee or otherwise discriminate against
any employee with respect to his compensation, terms, conditions, or privileges of employment because the
employee (or any person acting pursuant to a request of the employee)--
(A) notified his employer of an alleged violation of this chapter or the
Atomic Energy Act of 1954 (42 U.S.C. § 2011 et seq.);
(B) refused to engage in any practice made unlawful by this chapter or the
Atomic Energy Act of 1954 [42 U.S.C.A. §2011 et seq.], if
the employee has identified the alleged illegality to the employer;
(C) testified before Congress or at any Federal or State proceeding
regarding any provision (or proposed provision) of this chapter or the
Atomic Energy Act of 1954 [42 U.S.C.A. §2011 et seq.];
(D) commenced, caused to be commenced, or is about to commence or
cause to be commenced a proceeding under this chapter or the Atomic
Energy Act of 1954, as amended [42 U.S.C.A. §2011 et
seq.], or a proceeding for the administration or enforcement of any
requirement imposed under this chapter or the Atomic Energy Act of 1954,
as amended;
(E) testified or is about to testify in any such proceeding or;
(F) assisted or participated or is about to assist or participate in any manner
in such a proceeding or in any other manner in such a proceeding or in any
other action to carry out the purposes of this chapter or the Atomic Energy
Act of 1954, as amended [42 U.S.C.A. §2011 et seq.].
42 U.S.C.A. §5851(a)(1).
"The Secretary may determine that a violation of subsection (a) of this section
has occurred only if the complainant has demonstrated that any behavior described in subparagraphs (A)
through (F) of subsection (a)(1) of this section was a contributing factor in the unfavorable personnel action
alleged in the complaint." Id. at §5851(b)(3)(C).
3 On February 25, 1998, the Board
issued a briefing schedule in this case: "Complainant may file an initial brief not to exceed 30 double
spaced typed pages on or before March 26, 1998. Respondent may file a reply brief, not to exceed 30 double
spaced typed pages, on or before April 27, 1998. Complainant may file a rebuttal brief . . . on or before May
12, 1998." On March 25, 1998, the Board received from Complainant a package of material including
cassette tapes, a video tape, and assorted documents such as statements prepared by the Complainant in 1997
and a transcript of a Nuclear Regulatory Commission proceeding. The package contained no cover letter or
indication whether copies had been served on CP&L. CP&L made no response to the Briefing Order either
to say that it would rest on its submissions below or to file a brief. In light of the parties' failure to take
advantage of their opportunity to brief the case before the Board, we issue this decision today without benefit
of the parties' briefs.
4 Counsel for CP&L asserted that
the company did nothing to discourage Childers' co-workers, and that those who called CP&L about the
possibility of testifying in this case were told it was their "personal choice" and that the company
would not dock their pay. The ALJ found the representations of CP&L's counsel to be credible. 1997-ERA-
32 @ 14.
4 Other statutes create agency
programs that are implemented by the agency in all respects except enforcement litigation, which the statute
places within the jurisdiction of United States District Courts. Under these statutes, the litigants
automatically have access to subpoenas simply by virtue of the fact that U.S. District Courts have inherent
subpoena power. Examples of such statutes include the Americans With Disabilities Act, 42 U.S.C.A.
§12117 (West 1995); Title VII, 42 U.S.C.A. §2000e-5 (West 1994); and Rehabilitation Act
§504, 29 U.S.C.A. §794 (West 1999).
[USDOL/OALJ Reporter Editor's note: The slip opinion contains two footnote fours]
5Economou held that an
agency attorney who arranges for presentation of evidence on the record in an agency adjudication is
absolutely immune from suit based on introduction of such evidence because the agency attorney performed
functions analogous to those of a prosecutor. The statement that ALJs "may issue subpoenas"
was not a holding in the case. It was part of a general discussion making the point that an ALJ is comparable
to a judge, that an agency adjudication is comparable to a trial, and that the agency official who tries the case
is comparable to a prosecutor. Thus, Economou is useful to our discussion here as an example of
the common understanding that procedures in agency adjudications and in trials will be roughly comparable.
6 The Atomic Energy Commission
and its successor the NRC have authority to prohibit whistleblower retaliation by covered employers and to
force employers who engage in prohibited retaliation to stop their illegal practices and to correct safety
hazards identified by whistleblowers. 63 Fed. Reg. 57,324 (Oct. 27, 1998).
7 Both the National Labor Relations
Act, 29 U.S.C.A. §161, and the Federal Mine Health and Safety Act, as amended, 30 U.S.C.A.
§823(e) expressly authorize use of subpoenas in agency adjudications. However, the legislative history
of these acts gives no indication that in drafting those laws Congress gave any special consideration to the
question of subpoena power. Thus, we draw no inferences about subpoena power from the fact that a
subsequent Congress briefly mentioned the National Labor Management Act and the Federal Mine Safety
Act in connection with §5851.
8 The statutes that expressly authorize
subpoenas for agency adjudications also specify the U.S. District Court with jurisdiction to enforce the
agency's subpoena. However, that is not a necessity. District Courts with in personam jurisdiction
over the subpoenaed party would have jurisdiction over the agency's petition for enforcement of its subpoena
under 28 U.S.C.A. §1331 (West 1993) (general federal question) or 28 U.S.C.A. §1337(a) (West
2000) (commerce clause legislation) or 28 U.S.C.A. §1345 (West 1993) (actions commenced by a
federal agency). "We have found no cases squarely holding that these provisions [§§1331
and 1337] empower the district courts to enforce administrative subpoenas; nevertheless, we have no doubt
that subpoena enforcement proceedings fall within the scope of one or all of these broad grants of subject
matter jurisdiction." United States v. Hill, 694 F.2d 258, 267 (D.C. Cir. 1982).
9 The most specifically applicable
Department regulations for §5851 do not provide for issuance of subpoenas. 29 C.F.R. Part 24.
However, the Department's general Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges, 29 C.F.R. Part 18, which supplement Part 24, set forth specific
procedures for issuance of subpoenas "as authorized by statute or law." 29 C.F.R.
§18.24(a) (issuance upon written application of a party) and §18.29(a)(4) (issuance as authorized
by statute or law). Part 18 also sets forth the standards of admissibility, relevance and materiality applicable
to all evidence, including evidence sought by subpoena, §§18.103, 18.104, 18.401-407, and
incorporates by reference, 18.1(a), Federal Rule of Civil Procedure 45, "Subpoena."
[ENDNOTES -
CONCURRENCE/DISSENT]
1 Whether subpoena authority
must be express or can be implied depends on a weighing of the nature of the authority vested in the
government agency against the rights of the parties who will be affected by the exercise of that agency
authority. In situations where an agency is authorized to act in a manner that might impede certain
constitutionally-based rights, the courts have recognized that such right or rights dictate presumptions
applicable in the construction of the agency's authority. See e.g., Greene v. McElroy, 360
U.S. 474, 506-507 (1959). Thus, where an agency is engaged in the conduct of a Congressionally authorized
investigation there exists considerable interest in assuring that the issuance of any subpoena pursuant to that
investigation is consistent with the constitutionally-protected privacy interests of the parties who are the
targets of such investigation. (Justice Brandeis has characterized this right as "the right most valued
by civilized men." Brandeis, J., dissenting in Olmstead v. United States, 277 U.S. 438, 471,
at 478 (1928).) Consequently, the authority of an agency to issue investigatory subpoenas must be express
if the rights of those who find themselves the subject of such subpoenas are to be protected. In cases
involving agency adjudicatory authority, on the other hand, the constitutionally-protected interests and rights
of the litigants, particularly to procedural due process, are of paramount concern.
2 The ERA (as do other
environmental whistle blower protection laws) mandates a hearing "on the record." 42 U.S.C.
§5851(b)(2)(A) ("An order of the Secretary shall be made on the record after notice and
opportunity for public hearing.") "'On the record' is a term of art in administrative law, meaning
a full trial-like proceeding pursuant to Sec. 556 of the [A.P.A.], where the agency's decision is based solely
upon papers filed in the proceeding and evidence adduced at the hearing and thereby made part of the
record." Old Republic Insurance Co. v. Federal Crop Insurance Corp., 947 F.2d 269, 277 (7th
Cir. 1991) (citing 2 K. Davis, Administrative Law Sec. 10.7 (2d ed. 1979)).
3 The provisions of 5 U.S.C
§§ 554, 556 and 557 apply "in every case of adjudication required by statute to be
determined on the record after opportunity for agency hearing . . . ." 5 U.S.C. §554(a).
4 This is also an issue
separate and apart from the question of whether and to what extent the ALJ can impose sanctions short of
resort to the courts for enforcement. SeeAtlantic Richfield v. D.O.E., 769 F.2d 771 (D.C.
Cir. 1984), wherein the Circuit Court for the District of Columbia noted that where an agency acts in an
authorized judicial or quasi-judicial capacity, that authority necessarily encompasses the power "to take
such procedural actions as may be necessary to maintain the integrity of the agency's adjudicatory
proceedings" including, for example, the issuance of evidentiary sanctions such as the preclusion of
evidence and drawing of adverse evidentiary inferences. 769 F.2d at 794-795. "It seems to us
incongruous to grant an agency authority to adjudicate - which involves vitally the power to find the material
facts - and yet deny authority to assure the soundness of the fact-finding process." Id. at 795.
Such sanctions need not be authorized eo nomine in the agency's enabling statute. Id.
5 Had the Board jurisdiction
to decide the enforceability of such subpoenas once issued, I would conclude that they were enforceable.
Clearly, in applying to the district courts for enforcement pursuant to 29 C.F.R. §18.24(d) and/or
§18.29(b), the district courts would have authority to enforce the subpoena pursuant to 28 U.S.C.
§§ 1331, 1337(a) and/or 1345. See United States v. Hill et al., 694 F.2d at 267.
("[W]e have no doubt that subpoena enforcement proceedings fall within the scope of one or all of
these broad grants of subject matter jurisdiction. . . . [E]ach of the provisions is clearly sufficient to confer
subpoena enforcement jurisdiction."). See also 18 U.S.C. §1505 (criminal sanctions
for obstruction of agency proceedings).
6 "The test for the
relevancy of an administrative subpoena, whether adjudicative or investigative, is whether the information
sought is 'reasonably relevant' to the agency's inquiry. [citing, inter alia,F.T.C. v.
Browning, 435 F.2d 96, 102 (D.C. Cir. 1970) (adjudicative subpoena)]. There is, of course, a difference
in that the relevancy of an investigative subpoena is measured against the 'general purposes of [the agency's]
investigation,' [citations omitted], while the relevancy of an adjudicative subpoena is measured against the
charges specified in the complaint. [citations omitted]. But both instances are governed by the same
standard, reasonable relevance." F.T.C. v. Anderson, 631 F.2d 741, 745-46 (DC Cir. 1979)
(involving adjudicative subpoena). Accord, 29 C.F.R. §18.14(b) ("It is not ground for
objection that information sought will not be admissible at the hearing if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.").
7See Stephen Smith,
"Due Process and the Subpoena Power in Federal Environmental Health and Safety Whistleblower
Proceedings," 32 University of San Francisco Law Review 533 (1998), for a thorough
discussion of the application and weighing of these factors where subpoenas are sought in environmental
whistleblower proceedings.