USDOL/OALJ Reporter: ARB Decision Caselist - July 2012

[Nuclear and Environmental Digest VII C 3]
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; ARB ADOPTS "FAIR NOTICE" STANDARD AND DETAILS LEGAL STANDARD FOR ANALYZING SUFFICIENT OF COMPLAINT AT ALJ LEVEL

In Evans v. United States Environmental Protection Agency , ARB No. 08-059, ALJ No. 2008-CAA-3 (ARB July 31, 2012), the ARB set out the legal standard for analyzing the sufficiency of whistleblower complaints that are filed with OALJ.

Background - Affirmance of ALJ's dismissal under FRCP 12(b)(6) and reconsideration under Sylvester

In its initial decision in the case, Evans v. United States Environmental Protection Agency , ARB No. 08-059, ALJ No. 2008-CAA-3 (ARB Apr. 30, 2010), the ARB affirmed the ALJ's dismissal of the Complainant's environmental whistleblower complaint on the ground that the Complainant failed to state a claim upon which relief can be granted because his complaint and letter to the EPA Administrator did not contain information indicating that he "engaged in an activity protected by the Environmental Acts." In affirming the ALJ, the ARB noted that it was applying the standard of Rule 12(b)(6) of the Federal Rules of Civil Procedure Rule, and consequently the burden was on the Complainant to frame a complaint with "enough facts to state a claim to relief that is plausible on its face." Evans , ARB No. 08-059 (Apr. 30, 2010), USDOL/OALJ Reporter at 4, citing Ashcroft v. Iqbal , 556 U.S. ___, 129 S. Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2006). Essentially, the ALJ and the ARB found that the Complainant's complaints to EPA management were about purely occupational hazards that are not protected under the employee protection provisions of the whistleblower acts, and that neither the Complainant's letter of complaint to the EPA, nor the complaint he filed with OSHA, stated a viable legal theory of protected activity. The ARB also found that the complaint was properly dismissed under the summary decision standard and that the ALJ had not abused his discretion in denying the Complainant discovery because the facts relating to the Complainant's protected activity were within his knowledge and control and additional discovery was therefore unnecessary.

The Complainant petitioned for review by the Ninth Circuit Court of Appeals. The court granted the Secretary of Labor's unopposed motion to remand for the ARB to reconsider in light of the ARB's intervening ruling in Sylvester v. Parexel Int'l, LLC , ARB No. 07-123, ALJ Nos. 2007-SOX-39, -42 (ARB May 25, 2011), and "whether administrative whistleblower complaints filed with [OSHA] may be dismissed for failure to state a claim under Rule 12 of the Federal Rules of Civil Procedure, particularly under the heightened pleading standards set forth in [ Twombly ] and [ Iqbal ]." Evans v. United States Environmental Protection Agency , ARB No. 08-059, ALJ No. 2008-CAA-3 (ARB July 31, 2012), USDOL/OALJ Reporter at 5 (quoting the Secretary's motion before the 9th Circuit).

Informal administrative adjudication and disfavor of Rule 12(b)(6) facial challenges

In its decision on remand, Evans v. United States Environmental Protection Agency , ARB No. 08-059, ALJ No. 2008-CAA-3 (ARB July 31, 2012), the ARB emphasized that facial challenges to an administrative whistleblower complaint must occur in a manner consistent with informal adjudication, and noted the differing pleading requirements for a complaint filed in federal court and a complaint filed with OSHA under the regulations at 29 C.F.R. Part 24. The ARB noted the evolutionary nature of a complaint under the Part 24 procedure, and that when a request for a hearing before an ALJ is filed, only the original complaint and the Secretary's findings are supplied to the ALJ. Thus, the ALJ may not have before her the full articulation of the claim. The ARB stated: "Consequently, an ALJ should not act on a Rule 12 facial challenge until it is clear that the complainant has filed a document that articulates the claims presented to the OALJ for hearing following OSHA's findings." USDOL/OALJ Reporter at 8 (footnote omitted; footnote observed lack of clarity in ALJ's decision whether the "complaint" she was referring to was the original complaint filed with OSHA, or the objections/hearing request filed with OALJ). The ARB then noted that in Sylvester , the ARB found that Rule 12(b)(6) motions challenging the sufficiency of the pleadings were "highly disfavored" under the SOX whistleblower regulations and "highly impractical" under the OALJ rules of practice and procedure, but that because the complaint had been so detailed in Sylvester , it had not been necessary to articulate the legal standard for analyzing the sufficiency of complaints that are filed with OALJ. Accordingly, the ARB now addressed this standard.

Rejection of Twombly and Iqbal "plausibility" standard in favor of "fair notice" standard

The ARB found that "the absence in the regulations of a 'complaint' requirement or even minimum requirements that the complainant delineate his or her claims speaks against requiring an overly burdensome standard" but that "once a whistleblower case goes to the OALJ for an evidentiary hearing before an ALJ, just as in federal court, an opposing party has a right to 'fair notice' of the charges against it." Evans , ARB No. 08-059 (July 31, 2012), USDOL/OALJ Reporters at 4. The ARB noted that "fair notice" alone had been the standard for many years in federal court prior to the Supreme Court decisions in Twombly and Iqbal , in which the federal legal standard became fair notice with the showing of "plausibility." The ARB determined that "fair notice" was the proper standard in DOL ALJ whistleblower proceedings:

We find that in deciding a Fed. R. Civ. P. 12(b)(6) facial challenge, fair notice is the proper legal standard for any complaint filed by the complainant or required by the ALJ in administrative whistleblower proceedings before the DOL. More specifically, a sufficient statement of the claims need only provide (1) some facts about the protected activity, showing some "relatedness" to the laws and regulations of one of the statutes in our jurisdiction, (2) some facts about the adverse action, (3) a general assertion of causation and (4) a description of the relief that is sought.

USDOL/OALJ Reporter at 9. Noting the difference between a motion to dismiss based on a facial challenge to a complaint and a motion for summary decision, the ARB described how an ALJ should proceed:

    Generally, in reviewing whether to dismiss a complaint for failure to state a claim, the ALJ should not consider new evidence submitted by the moving party (i.e., evidence that was not before OSHA at the investigatory phase) unless he or she converts the motion to one for summary decision and allows the non-movant an opportunity to respond. In essence, unlike a motion for summary decision filed after discovery, a facial challenge to a complaint points to a missing essential element (no protected activity or adverse action) or a legal bar to the claim (e.g., sovereign immunity, lack of coverage over the respondent, the statute of limitations). A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the complaint, not the merits of the case.

    In federal district court, where a "pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding." Along those lines, where a complaint OSHA forwarded to the OALJ fails to provide sufficient factual allegations to give the respondent fair notice of the nature of the complaint, the ALJ is obligated to permit the complainant an opportunity to provide those sufficient facts either in writing or orally prior to ruling on the motion to dismiss the complaint. Given the nature of administrative whistleblower complaints, the complainant is typically best suited to provide that information without the need for discovery since the circumstances giving rise to the OSHA complaint in most cases involves the complainant's personal experiences.

USDOL/OALJ Reporter at 10-11 (footnotes omitted).

Amendment of complaint

In Evans , the ALJ erred when she denied the Complainant leave to amend his OSHA complaint. The ARB held that "'[d]ismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.'" USDOL/OALJ Reporter at 12 (quoting Contreras v. Toyota Motor Sales U.S.A. Inc ., 2012 WL 1997802 at 1 (9th Cir. 2012)). The ARB explained:

   Given the informal nature of an investigatory complaint filed with OSHA, and the absence of a regulatory requirement that supplemental information be forwarded to the OALJ on the filing of objections and request for hearing under 29 C.F.R. § 24.105(b), it is reasonable and prudent to expect ALJs to provide a complainant an opportunity to amend the complaint with additional factual information including that taken from supplementary information or documents that the complainant provided to OSHA during the investigatory phase of the complaint. Prior to ruling on a motion to dismiss, the ALJ, having broad discretion to ascertain the claims contained in the complaint, has discretion to conduct an informal pre-hearing conference, request written submissions, or require prehearing statements to determine the nature of a complainant's claim(s). The ALJ should not dismiss a complaint for failure to state a claim until he or she has allowed the complainant a sufficient opportunity to amend or supplement the claim(s) contained in the complaint.

USDOL/OALJ Reporter at 12 (footnote omitted). The ARB noted that in the instant case, it was not clear why the Complainant had not provided more factual allegations to support his whistleblower claims when he filed his complaint with OSHA, but that given that the OSHA findings noted that he had made several amendments to the complaint, which were not in the record sent to OALJ, those amendments might have contained the factual allegations needed to withstand dismissal for failure to state a claim. The ARB noted that the ALJ had denied leave to amend based on her conclusion that it was not a defect in the complaint itself that warranted dismissal, but rather the absence of protected activity. The ARB, however, found that this assessment was only a prediction and that the denial was premature.

Filing of whistleblower complaint with OSHA was itself protected activity

The ARB found that even if the Complainant's original 2004 letter to the EPA Administrator was not protected activity under the applicable environmental laws, his 2006 filing of an OSHA whistleblower complaint (after which the Complainant was suspended and transferred) was itself protected activity.

ARB erred in first decision in dismissing under summary decision standard

Finally, the ARB held that it erred in its 2010 decision in finding that EPA was entitled to summary decision because the ALJ had expressly not conducted a summary decision analysis, and therefore summary decision was not an issue before the ARB.

Concurring opinion - ALJ's should have discretion to manage case

One member of the ARB filed a concurring opinion (1) to explain that an ALJ has the discretion to allow an amendment of a complaint both before and after ruling on a motion to dismiss, and (2) to state that the ARB should have gone ahead to rule on whether the May 2006 complaint actually meets the "fair notice" standard.

The concurring member addressed the practical aspects of an ALJ's management of a case and how focusing on whether the OSHA complaint is technically speaking a "complaint" is not productive. The concurring member noted that no rule prohibits an ALJ from requiring the complainant to produce a complaint once the matter is filed at OALJ. This can be accomplished in many ways, such as designating the OSHA complaint as a complaint, drafting a new complaint, or perhaps filing a pre-printed OALJ complaint form. The concurring opinion expressed concern about the procedural carnage that would occur if the ARB "(1) disregarded the ALJs' discretion to require a complaint or some equivalent, (2) rejected the concept of a facial challenge to a complainant's claims, and (3) collapsed the ALJs' Rule 12(b)(6) practice into the summary decision practice provided in 29 C.F.R. § 18.40." USDOL/OALJ Reporter at n.70.

The concurring member voiced the opinion that the ALJ's error was not in ruling on the motion to dismiss without first allowing an amendment (the Complainant was represented by counsel and had been given sufficient opportunity to pursue an amendment prior to a ruling on the Respondent's motion to dismiss), but in failing to grant leave to amend prior to completely dismissing the case. The concurring member noted that it is common practice in federal court to rule on a motion to dismiss and then give an opportunity to file an amended complaint, and that this is often the preferred practice as it gives the judge the opportunity to explain in writing the deficiencies in a complaint, as opposed to an inherently less effective order to show cause procedure. The concurring member summed up: "The point is that ALJs should be permitted discretion to decide how to handle a motion to dismiss so long as they do not dismiss the entire case before the complainant has had at least one reasonable opportunity to provide an amended complaint, which provides more facts." USDOL/OALJ Reporter at 18.

Finally, the concurring member voiced the opinion that the ARB should have gone ahead and ruled that the Complainant's May 2006 complaint had, in fact, failed to provide fair notice of suspected environmental law violations.

Concurring and dissenting opinion - there is no pleading requirement

One member of the Board filed a concurring and dissenting opinion, expressing the opinion that much of the majority's decision was dicta, and that although he agreed with a remand, he did so for different reasons. This member had concurred and dissented in Sylvester , expressing the view that neither FRCP 12(b)(6) nor federal court pleading requirements are applicable to SOX whistleblower complaints, and that he would reach the same conclusion for environmental whistleblower complaints. This member of the Board argued that the regulations do not require a "pleading complaint" filed with OSHA or OALJ, and therefore there is nothing before the ALJ to which the pleading standards of FRCP 12(b)(6) or FRCP 8(a) applies. This member voiced the opinion that the majority opinion "inflicts an increased pleadings burden upon the whistleblower complainant where no pleading burden is otherwise required...." USDOL/OALJ Reporter at 23. This member stated that the summary decision rule at 29 C.F.R. § 18.40 remains available to summarily dismiss a claim prior to hearing, either as a matter of law or where a claim lacks evidentiary support.

This member of the Board would not have reached the question of whether the May 2006 OSHA complaint was protected activity because this is a determination that should made initially by an ALJ after considering any and all relevant information. This member also agreed that EPA's entitlement to summary judgment was not before the Board, but for different reasons than those stated by the majority.

Summary denial of reconsideration.

The ALJ issued an "Interim Decision" finding that the Respondent violated the NTSSA when it terminated the Complainant. The ALJ notified that parties that once additional evidence on remedies was submitted, the record would be closed, and a Decision and Order issued thereafter. The Interim Decision did not include a Notice of Appeal Rights. The Respondent petitioned for review, and the ARB dismissed the petition, finding no basis for an interlocutory appeal.

The ARB approved the Complainants' unopposed supplemental fees and costs petition for work before the ARB.

Notice that the ARB had not accepted the case for review.

FRSA SECTION 20109(c)(1) PROHIBITS A RAILROAD FROM DENYING, DELAYING, OR INTERFERING WITH AN EMPLOYEE'S MEDICAL TREATMENT THROUGHOUT THE PERIOD OF TREATMENT AND RECOVERY FROM A WORK INJURY

In Santiago v. Metro-North Commuter Railroad Co., Inc. , ARB No. 10-147, ALJ No. 2009-FRS-11 (ARB July 25, 2012), the Complainant alleged that the Respondent violated the Federal Rail Safety Act of 1982 (FRSA), 49 U.S.C. § 20109, when it reclassified his back injury as non-occupational and ceased paying for medical treatment. The ALJ concluded that FRSA § 20109(c)(1)'s prohibition on a railroad on delaying, or interfering with an employee's medical treatment applies only to the temporal period surrounding the injury, and therefore the Respondent in the instant case did not violate the FRSA because it had approved and paid for the prescribed treatment for eight weeks. On appeal the ARB acknowledged that the ALJ had made a thoughtful and comprehensive analysis of the difficult issues presented, but respectfully disagreed with her conclusion. Employing rules of statutory construction, the ARB held that "subsection 20109(c)(1) bars a railroad from denying, delaying, or interfering with an employee's medical treatment throughout the period of treatment and recovery from a work injury." Moreover, although the clear language of the statute made in unnecessary to refer to the legislative history, the ARB found that the history supported a broad interpretation of the law.

The ARB also addressed the meaning of "deny, delay or interfere," and found:

These are prohibitive words simply meaning to impede, slow down, or prevent medical treatment from moving forward or occurring. An act that causes medical treatment to be rescheduled necessarily means that the treatment was delayed. Any obstacle placed in the way of treatment necessarily results in interference. Denial means to refuse or reject a request for medical care. This subsection of the statute simply focuses on whether the railroad carrier interfered with medical treatment and thereby engaged in adverse action. ...[I]ssues pertaining to the reasonableness or necessity of the treating physician's treatment plan may be a factor in the railroad's attempt to establish an affirmative defense under section 20109(c), but not a factor in the employee's attempt to prove that the railroad interfered with medical treatment.

USDOL/OALJ Reporter at 16 (footnote omitted).

The ARB held that a railroad does not have an affirmative duty under the FRSA whistleblower statute to provide medical care, but only a duty to transport the employee to a hospital and not interfere with medical care or treatment. The ARB held, however, that where the railroad agrees to pay for medical treatment for work injuries, it cannot insert itself into the process and influence the level of care provided.

The ARB summarized: "[T]o prove that a railroad carrier violated subsection 20109(c)(1), an employee needs to prove that (1) the carrier inserted itself into the medical treatment and (2) such act caused a denial, delay, or interference with medical treatment." USDOL/OALJ Reporter at 17.

The ARB rejected the Respondent's argument on appeal that permitting subsection 20109(c)(1) to apply beyond the immediate period of injury would eviscerate the Federal Employers' Liability Act, finding that although there can be overlapping remedies, a railroad's defense against a FELA claim is separate from those addressed in a FRSA whistleblower claim.

CLEAR AND CONVINCING STANDARD OF PROOF IN FRSA SECTION 20109(c) REQUEST FOR MEDICAL CARE CASES; BECAUSE AIR21 CLEAR AND CONVINCING STANDARD CANNOT BE APPLIED LITERALLY, ARB CRAFTS INTERPRETATION REQUIRING SHOWING THAT THE RESULT WOULD HAVE BEEN THE SAME ABSENT THE RESPONDENT'S INTERFERENCE WITH THE CARE

In Santiago v. Metro-North Commuter Railroad Co., Inc. , ARB No. 10-147, ALJ No. 2009-FRS-11 (ARB July 25, 2012), the Complainant alleged that the Respondent violated the Federal Rail Safety Act of 1982 (FRSA), 49 U.S.C. § 20109, when it reclassified his back injury as non-occupational and ceased paying for medical treatment. Because the ARB remanded the case, it found it expedient to clarify the employer's "clear and convincing evidence" burden of proof, given the difficult analytical connection between the language of FRSA section 20109(c) cases and Congress' decision to link FRSA whistleblower cases to the AIR21 burdens of proof. Finding it impossible to literally apply AIR 21 burdens to an employer's interference with the request for care, the ARB found it necessary to craft a reasonable interpretation of congressional intent. The ARB thus held that the carrier is required to

...prove by clear and convincing evidence that the result would have been the same with or without the railroad carrier's interference (if the employee first proves that the railroad carrier or other covered person interfered). This does not require that the ALJ weigh medical evidence and actually decide the issue of medical causation or reasonableness one way or the other. Instead, as in other discrimination cases, the ALJ must look at all the direct and circumstantial evidence, as a whole, to determine whether the [r]espondent clearly and convincingly proved that the outcome would have been the same without [the respondent's] alleged interference.

USDOL/OALJ Reporter at 18-19.

ARB denies request for enlargement of time to file petition for interlocutory review where the request was already untimely and constituted a request to revisit matters already considered by the ARB.

ARB closes SOX appeal before it because the Complainant filed an action in district court seeking de novo review pursuant to 18 U.S.C.A. � 1514A(b)(1)(B).