USDOL/OALJ Reporter: ARB Decision Caselist - November 2016

• PDF (slip opinion)
• PDF (USDOL/OALJ Reporter)

[Nuclear and Environmental Whistleblower Digest VII A 2]
SUMMARY DECISION; ALJ’S DECISION TO LIMIT DISCOVERY IS REVIEWED FOR ABUSE OF DISCRETION

In McNiece v. Dominion Nuclear Connecticut, Inc. , ARB No. 15-083, ALJ No. 2015-ERA-5 (ARB Nov. 30, 2016), the Respondent filed before the ALJ a motion to dismiss on three grounds, one of which was that the complaint was not timely. The ALJ treated the motion as a motion for summary decision, and granted the Complainant 30 days to conduct limited discovery pertaining to the issues raised in the Respondent’s motion. Later, the ALJ granted the Respondent’s motion for a protective order limiting discovery to the issues raised in the motion for summary decision. The Complainant requested reconsideration, arguing that discovery should be unlimited. The ALJ denied the request finding that discovery was properly limited at summary decision stage of proceeding. The ALJ granted an enlargement of time for discovery and argument. The only additional evidence submitted by the Complainant were copies of a settlement reached between the Complainant and the Respondent, and a later settlement reached between the Complainant’s wife and the Respondent. The ALJ found that the only adverse action alleged within the 180-day limitations period was the Complainant’s wife’s purported “dismissal” or “forced resignation. ” The ALJ found, however, that the Complainant’s wife had knowingly and voluntarily entered into a settlement, approved by an ALJ, in which she had agreed to end her employment relationship with the Respondent. The ALJ found that no adverse action had occurred within the 180-day limitations period and dismissed the complaint.

On appeal, the Complainant’s only argument was that the ALJ abused her discretion in restricting discovery. The ARB reviewed the Complainant’s discovery requests, and the ALJ’s ruling on the Respondent’s motion for a protective order. The ARB then stated:

    To establish that the ALJ abused her discretion in limiting discovery, McNiece must, at a minimum, show how further discovery could have permitted him to rebut DNC’s contentions that he failed to timely file his complaint. But other than general arguments that limiting discovery made it “impractical” for McNiece to obtain crucial evidence, he failed to address specifically how the rejected interrogatories or documents would have led to evidence that would have raised a material fact question regarding the timeliness of his complaint. The ALJ reviewed each of the interrogatories and document requests and explained why she rejected them. McNiece failed to address, much less rebut, any of her reasons.

Slip op. at 7-8 (footnote omitted). The ARB also noted that the Complainant’s discovery requests not subject to the ALJ’s protective order had not led to discovery of admissible evidence probative to demonstrate that the complaint was timely. The ARB thus was not convinced that the interrogatories and discovery requests subject to the protective order would have been any more probative.

Accordingly, the ARB found no abuse of discretion by the ALJ in limiting discovery, and affirmed her dismissal of the case.

• PDF (slip opinion)
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[STAA Digest II J]
TIMELINESS OF PETITION FOR ARB REVIEW; OALJ RULE FOR ADDING TIME WHEN A DOCUMENT IS SERVED DOES NOT GOVERN SECTION 1978.110(a) WHICH BASES TIME CALCULATION ON DATE OF THE ALJ’S DECISION; ABSENCE OF PREJUDICE MAY ONLY BE CONSIDERED AFTER A FACTOR SUPPORTING TOLLING HAS BEEN ESTABLISHED

In Butler v. Neier, Inc. , ARB No. 16-086, ALJ No. 2014-STA-68 (ARB Nov. 21, 2016), the Complainant filed his petition for ARB review three days after it was due, and the ARB issued an order to show cause why the petition should not be dismissed as untimely.

The Complainant asserted that the OALJ Rules of Practice and Procedure the petition would have been timely. The ARB noted that the Complainant had not asserted that he relied on these rules in failing to timely file the petition for review, and that he had admitted the well-established finding that the ARB is not bound by these rules. See Herchak v. American Airlines West, Inc. , ARB No. 03-057, ALJ No. 2002-AIR-12, slip op. at 3-4 (ARB May 14, 2003). The ARB found that the petition would not have been timely even under the OALJ procedural rules. The ARB noted that 29 C.F.R. § 18.32(c)9 provides that three days are added when service is by mail, “[w]henever a party has the right or is required to take some action within a prescribed period after the service of a pleading, notice, or other document upon said party.” (emphasis added). The ARB noted that 29 C.F.R. § 1978.110(a) provides that to be effective the petition must be filed within “14 days of the date of the decision of the ALJ,” not within 14 days of the date upon which the decision was served .” (emphasis added). The ARB thus found that 29 C.F.R. § 18.32(c), by its terms, is not applicable to the filing of a petition for review.

The Complainant also rejected the Complainant’s contentions that the final day of the 14 day period was a Saturday, and therefore he had to the following Monday to file (the ARB finding that the 14 day period ended on a Friday), and that the Respondent had not been prejudiced (the ARB finding that “the absence of prejudice is a factor to be considered only once the party has established a factor supporting tolling and is not by itself an independent ground establishing entitlement to equitable tolling.” USDOL/OALJ Reporter at 4 (footnote omitted)).

• PDF (slip opinion)
• PDF (USDOL/OALJ Reporter)

The ARB dismissed the Complainant's appeal for abandonment because he failed to respond to the ARB's order to show cause why he failed to file an opening brief.

• PDF (slip opinion)
• PDF (USDOL/OALJ Reporter)

INTERLOCUTORY APPEAL; ALJ'S DISCOVERY ORDERS ARE GENERALLY NOT APPEALABLE COLLATERAL ORDERS

In Heckman v. M3 Transport LLC , ARB No. 16-083, ALJ No. 2012-STA-59 (ARB Nov. 10, 2016), the ARB found that the Complainant failed to establish that he was entitled to pursue an interlocutory appeal where the appeal was filed five months after the ALJ issued the order from which the interlocutory appeal was sought and was therefore not timely; the Complainant had not obtained certification of the issue as provided in 28 U.S.C.A. § 1292(b); and the discovery issue raised by the Complainant was not a controlling legal issue, but instead questioned the ALJ's discretionary determination, based upon findings of fact and law, unsuitable for interlocutory review. The Board noted that it had "held that discovery orders are readily subject to review upon appeal and therefore generally are not considered to be appealable collateral orders." The Board stated that if the Complainant believed "that the ALJ's discovery orders constituted an abuse of discretion that prejudiced his case, he may so argue upon appeal, if and when, the ALJ issues a decision and order denying his complaint."