Varnadore v. Oak Ridge National Laboratory,
1994-CAA-2, 94-CAA-3 (ALJ Apr. 6, 1994)
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. SeeEisner 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).
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 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).
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. SeeMining 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.]
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.
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).
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. SeeCoupar 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.
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.
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
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.
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 alsoMichaud 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).
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.
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, seeHoward 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).
[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." Seewww.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).
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.]
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
[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. SeePastor 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
SeeDavis 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 filedVarnadore 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.]
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).
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 alsoGriffith 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)."); compareJohnson 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
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)).
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.
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).
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
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 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).
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 alsoEnglish 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.
[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
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 & 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).
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),
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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
[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
[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
InBeliveau 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:
there must be a controlling question of law
at issue;
there must be a substantial ground for
difference of opinion;
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.
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.
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
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.
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.
[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.
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.
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).
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. SeeAnderson 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.
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
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).
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.
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.
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).