Amicus Briefs

Invitations to File Amicus Briefs

Except as otherwise provided by statute or regulation, the Administrative Review Board (ARB or Board) accepts amicus briefs only in cases in which it has issued an order allowing such filings. The current cases in which amicus briefs are allowed are:

• Fagan v. Department of the Navy, ARB No. 2023-0006, ALJ No. 2021-CER-00001.

The ARB granted Complainant's petition for interlocutory review. This case arises under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Safe Drinking Water Act (SDWA), and their implementing regulations. See 42 U.S.C. § 9610, 42 U.S.C. § 300j-9(i), 29 C.F.R. Part 24. In response to motions filed by Complainant to subpoena witnesses to testify at depositions and at hearing, the Administrative Law Judge (ALJ) concluded that he lacked legal authority to issue subpoenas under CERCLA or SDWA and so denied Complainant's motions. At Complainant's request and pursuant to 28 U.S.C. § 1292(b), the ALJ certified for interlocutory review the question of "ALJ subpoena authority in whistleblower and other proceedings with trial-type hearings, but no express statutory authorization." The ARB granted Complainant's petition for interlocutory review and now invites interested persons or entities to submit amicus briefs addressing whether ALJs have subpoena authority in matters involving statutes with trial-like hearing procedures but lacking explicit statutory provisions, including CERCLA and SDWA. As stated in the ARB's order granting review, we do not intend to consider whether every federal whistleblower or other statute "with trial-type hearings" contains statutory direction regarding the authority of an ALJ to issue subpoenas. Instead, we intend to focus on whether the ARB's decision in Childers v. Carolina Power & Light Co., ARB No. 1998-0077, ALJ No. 1997-ERA-00032 (ARB Dec. 29, 2000), and its progeny mandate an outcome different than that ordered by the ALJ.

On listed cases, any person or entity who wishes to file an amicus curiae brief is allowed to do so provided the filing meets the requirements identified below.

1. Core Requirements
   
   The core requirements for all amicus briefs are set forth in the Board's Rules of Practice and Procedure (codified at 29 C.F.R. Part 26) and Rules 26 and 28 of the Federal Rules of Appellate Procedure. All significant differences are noted below. Amicus briefs must comply with all other relevant provisions of both the ARB's Rules of Practice and Procedure and the ARB's Briefing Order in the case to which the brief is submitted, including the rules and requirements in the section titled Electronic Filing and Service.
    
2. Consent Not Required; Notice to Parties Required
   
   All persons or entities desiring to do so may file an amicus brief in a listed case in support of either party or neither party. Potential amici do not need consent from the parties to the case or the Board to file an amicus brief but must provide notice to all parties of record and the Board at least 10 days prior to the amicus filing deadline.
   
   In all matters, the Board may prohibit the filing of or may strike an amicus brief that would cause the disqualification of a Board member.
    
3. Required Contents
   
   Every amicus brief must contain the following sections, with separate headings and text:
    
   1. Descriptions of the Identities and Interests describing or explaining:
      • the name and identities of each amicus;
      • the interests of each amicus in the appeal; and
      • how the amicus brief will be relevant to the issues involved in the appeal and the ways in which the brief will contribute materially to the proper disposition of the appeal;
   2. Corporate Disclosure Statement (if applicable) – Any corporate amicus must identify its parent corporation(s) and must either list any publicly held corporation that owns 10% or more of the amicus corporation's stock or state that there is no such corporation;
   3. Disclosures of Monetary or Editorial Contributions to the Amicus Brief – The amicus brief must include certain disclosures concerning monetary or editorial contributions to the brief. This section should state whether a party or counsel for a party authored the amicus brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the amicus brief. This section also must identify every person (other than the amicus, its members, or its counsel), who made such a monetary contribution, or that no such contributions were made.
   4. Summary of the Argument;
   5. Argument; and
   6. Conclusion.
      
      Any amicus brief longer than five pages must contain both a table of contents and a table of authorities.
       
4. Filing Deadlines
   
   The deadline to file an amicus brief in support of an appellant or appellee is fourteen (14) days after the filing of the brief of the party the amicus supports. If the amicus brief is in support of neither party, the deadline is fourteen (14) days after the time allowed for filing the appellee's brief.
   
   Absent extraordinary good cause shown, the Board will not: (a) accept or consider any amicus brief filed after the deadline for its submission; (b) entertain any motions or requests to extend the deadlines; or (c) make any exceptions to these requirements.
    
5. Page Limits
   
   An amicus brief may not exceed 30 pages, which page limit does not include any questions presented, the title page, the listing of parties, amici, and counsel, tables of contents and authorities, signature block, certificate of disclosure (if needed), and certificate of service. The Board will not accept or consider any amicus brief that exceeds the page limits and will not consider any requests for enlarged page limits.
    
6. Information Updates Required
   
   Amici must promptly file a supplemental statement regarding any updated information previously provided to the Board.