ARB | OALJ
The Secretary of Labor has delegated her responsibility to issue final
agency decisions in cases involving the whistleblower provisions of some
environmental and other statutes to the Administrative Review Board. The ARB
automatically reviews all recommended decisions by Administrative Law Judges
(ALJ) under the Surface Transportation Assistance Act of 1982 (STAA), 49
U.S.C.A. § 31105 (West 1997). A party seeking review of an ALJ's decision
under other whistleblower provisions must file a timely petition for review
with the Board as provided in the relevant statute's implementing regulations.
Regulations implementing the STAA provide that a party may file a brief
in support of or in opposition to an ALJ's recommended decision within thirty
days of the date the ALJ issues the decision. But in cases arising under the
other whistleblower provisions, once a party has sought timely review and the
ARB dockets an appeal, it issues an order setting out the briefing schedule and
procedural requirements for briefs. The ARB may affirm, reverse or modify the
ALJ's decision, or it may remand the case for further proceedings before the
ALJ. The ARB's final decision ends all proceedings before the Secretary of
Labor. Thus, after the ARB issues its final decision any further proceedings
are in the federal courts.
"Whistleblower" is a term of art used to refer to the broader
category of "employee protection" provisions of various laws. The Department of
Labor adjudicates many, but not all, whistleblower disputes.
Whistleblower, or employee protection, complaints in cases adjudicated
by the Department of Labor are initially filed with OSHA, ESA or OWCP,
depending on the law involved.
The following discussion describes what can you expect after the
investigating agency has completed its investigation and rendered a
determination, and either you or the Respondent has requested a hearing.
Setting up the hearing
Most whistleblower cases are expedited. Thus, an administrative law
judge is assigned to the case within a few days after docketing. ALJ hearings
are generally set for the most practical place for a hearing, such as a town
nearest to where most witnesses would be located. You will not have to travel
to Washington, D.C. for the hearing unless that is the logical place for the
hearing.
Discovery, motions, settlement negotiations
A whistleblower case proceeds much like any law suit - there is a
pre-hearing period in which the parties conduct discovery, file motions with
the ALJ, and work out the hearing schedule. Parties may engage in settlement
negotiations. OALJ will provide a settlement judge to assist in any settlement
negotiation if the parties jointly request. See
Settlement
Judges.
The hearing
At the hearing, witnesses will testify and evidence is submitted. This
is the record upon which the case is decided, so it is important to put on all
of your relevant evidence at this time, including evidence on damages (unless
the ALJ has ordered a second hearing dedicated solely to this issue).
ALJ hearings are de novo, which means "from the beginning."
Thus, the ALJ will independently consider the testimony and evidence to
determine whether a whistleblower law has been violated, and if so, what relief
is appropriate.
Public Access
ALJ hearings are open to the public. ALJ and ARB decisions and selected
orders are published on the DOL Web site. Thus, if you intend to introduce
evidence or testimony that you do not wish to have open to public scrutiny, you
must take steps before the ALJ to invoke whatever legal protections may be
available to limit public access. An ALJ, however, is limited in his or her
authority to restrict such access. See
Public Access Notice.
Contacting the OALJ or the presiding ALJ
Improper ex parte communication with an administrative adjudicatory
officer is prohibited by statute and regulation. If you make such a
communication, including messages sent by e-mail, the agency is required to put
that communication on the public record. See 5 U.S.C. 557(d)(1)(C); 29 C.F.R.
§ 18.38.
Ex parte communications are communications, outside the knowledge of
the opposing counsel or party, between an agency employee involved in the
decision making process, e.g., the judge presiding in a case, and an interested
person outside the decision-making process, e.g., one of the attorneys or
parties to the case, about significant substantive issues of the case, i.e.,
facts in issue, or procedural issues, if that procedural communication could
unfairly disadvantage other parties to the case.
Some ex parte communications are not improper. Communications, for
example, for the sole purpose of scheduling hearings or requesting extensions
of time are not considered ex-parte communications, except that all other
parties should be notified of such request by the requesting party and be given
an opportunity to respond thereto. No person at OALJ may give you advice on how
to litigate your case.
The ALJ's decision
Once the record is closed, the ALJ will write a decision. Depending on
the law involved, some decisions are automatically reviewed by the
Administrative Review Board, and some are only reviewed if one of the parties
requests such review. Some decisions are only reviewed by the ARB if a party
petitions for review and the ARB decides to accept the case for review. The
ALJ's decision will have a notice explaining the appeal process for the
particular law involved.
How long does it take?
The length of the hearing process varies depending on how complex the
case is. Thus, a case may be resolved within weeks of assignment to an ALJ,
while some particularly complex cases may be pending for a year or more. A
typical case takes about six months between assignment of an ALJ and the
issuance of the ALJ's recommended or initial decision.
Attorneys and representatives
Most whistleblowers are represented by an attorney, and because the law
in this area can be complex, you may be well-advised to retain a private
attorney. You may, however, use a lay representative or choose to appear on
your own behalf ("pro se"). In STAA cases where the OSHA Regional Administrator
found that the complaint had merit, the prosecuting party is the Assistant
Secretary for OSHA, who is represented by the Office of the Solicitor. Thus, a
DOL attorney may be taking a role that favors your position in a whistleblower
hearing. Technically, however, the DOL attorney is representing OSHA rather
than you. Thus, many STAA whistleblowers still retain a private attorney to
assist in the prosecution of the case.
OALJ does not appoint counsel nor can it make attorney referrals. 29
C.F.R. §18.35.
The Appeal
Once the ARB dockets an appeal, it issues a Notice setting out the
briefing schedule and procedural requirements for briefs. The ARB may affirm,
reverse or modify the ALJ's decision, or it may remand the case for further
proceeding before the ALJ. The ARB's final decision ends all proceedings before
the Secretary of Labor. Thus, after the ARB issues its final decision any
further proceedings are in the federal courts.
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