USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION XXI -- RES JUDICATA/COLLATERAL ESTOPPEL/LAW OF THE CASE

USDOL/OALJ Nuclear and Environmental Whistleblower Digest
DIVISION XXI -- RES JUDICATA/COLLATERAL ESTOPPEL/LAW OF THE CASE

[Last updated June 4, 2009]

XXI. Res judicata/collateral estoppel/law of the case: A. Prior DOL proceeding; B. Other proceedings; C. Law of the case; stare decisis

[Nuclear and Environmental Whistleblower Digest XXI A]
RES JUDICATA EFFECT OF DOL PROCEEDINGS; ISSUE AND CLAIM PRECLUSION; JUDICIAL ESTOPPEL OF INCONSISTENT POSITION

In Seetharaman v. Stone & Webster, Inc. , No. 05-cv-11105 (D.Mass. May 11, 2009) (case below ARB No. 06-024, ALJ No. 2003-CAA-4), the Plaintiff had brought various state and federal discrimination claims before the court, and employment discrimination and retaliation claims before the Department of Labor's Occupational Safety and Health Administration. At the parties' request, the court had stayed the federal court action pending the outcome of the OSHA complaint. The Defendent emerged from the DOL proceedings victorious, and filed a motion with the court seeking summary judgment on the Plaintiff's remaining claims, primarily on the basis of issue and claim preclusion.

The court found that res judicata may apply to determinations made by administrative agencies when the agency acted in a judicial capacity, which DOL clearly did in the Plaintiff's case in proceeding before an ALJ and the ARB. DOL's ruling was ultimately affirmed by the First Circuit. Accordingly, the DOL proceedings had res judicata effect.

Applying the particulars of the claims and issues litigated before DOL to the claims pending before the court, the court found that claims based on protected activity were all precluded by DOL's finding that the Plaintiff had not suffered any adverse employment actions as a result of his alleged whistleblowing activities. In regard to the remaining discrimination claims, the court found that they were (1) subject being found untimely because of DOL's findings of the date upon which the Plaintiff had unequivocal knowledge that he was being transferred; (2) that the Plaintiff could not re-litigate a hostile work environment claim that had been rejected by the ALJ; and (3) that the DOL proceedings conclusively established that the Defendant terminated the Plaintiff for legitimate reasons. The court found that to the extent that the discrimination claims were based on "mixed motive," they were not barred. The court also found that the Plaintiff's tort claims were barred by findings in the DOL proceedings that conclusively established that the Plaintiff was not terminated due to any protected activities. The court also found that a promissory estoppel claim based on the Plaintiff's claim that he voluntarily transferred in reliance on promises of training, continued employment and promotion, were barred by the doctrine of judicial estoppel (which precludes parties in civil litigation from asserting legal or factual positions inconsistent with positions they took in prior proceedings), because the Plaintiff had consistently asserted before DOL that he was forced to transfer in retaliation for his protected activities.

[Nuclear and Environment Digest XXI A]
ISSUE PRECLUSION; WHERE ISSUE OF WHETHER RESPONDENT COULD REFUSE TO HIRE THE COMPLAINANT FOR EVERY JOB HE APPLIED FOR HAD BEEN FULLY LITIGATED AND RESOLVED IN A PRIOR ADJUDICATION, COMPLAINANT'S CLAIM OF UNLAWFUL RETALIATION FOR SUBSEQUENT REJECTION WAS BARRED

In Hasan v. USDOL , No. 05-099 (7th Cir. Dec. 10, 2008) (unpublished) (case below ARB No. 05-099, ALJ No. 2002-ERA-32), the Seventh Circuit agreed with the ARB that issue preclusion prevented the Complainant from pursuing a claim of unlawful rejection of his job application where in a previous complaint, the ALJ had found that the Respondent had legitimate and nondiscriminatory reasons for not hiring the Complainant and for concluding that it would never hire him, the ARB had agreed with that recommendation, and the Seventh Circuit had denied the Complainant's petition for review. See Hasan v. USDOL , 400 F.3d 1001 (7th Cir. 2005). The court found that the issue of whether the Respondent could refuse to hire the Complainant for every job he applied for had been fully litigated by the parties and resolved. The Complainant was no longer entitled to contest this issue.

[Nuclear and Environment Digest XXI A]
COLLATERAL ESTOPPEL APPLIES IN ADMINISTRATIVE ADJUDICATION

Collateral estoppel applies in administrative adjudication. Thus, in Muino v. Florida Power & Light Co. , ARB Nos. 06-092 and 06-143, ALJ Nos. 2006-ERA-2 and 8 (ARB Apr. 2, 2008), the ARB found that collateral estoppel precluded the Complainant's second complaint (which he had filed based on information he alleged he first learned about during his deposition on the first complaint), where the issue of whether the Respondent had taken adverse action against the Complainant because of his safety complaints was the same in both complaints, and the issue had been fully and fairly litigated and decided both before the ALJ and the ARB in the first complaint.

[Nuclear and Environmental Whistleblower Digest XXI A]
RES JUDICATA EFFECT OF DOL PROCEEDINGS; ISSUE AND CLAIM PRECLUSION; JUDICIAL ESTOPPEL OF INCONSISTENT POSITION

XXI A Res judicata

In Howard v. Tennessee Valley Authority, 91-ERA-36 (ALJ June 13, 1991), the administrative law judge recommended dismissal of the complaint based on res judicata , the same issues having been raised in the prior decision of an administrative law judge in case number 90-ERA-24. See Howard v. Tennessee Valley Authority, 90-ERA-24 (ALJ Sept. 4, 1990), aff'd, (Sec'y July 3, 1991), aff'd, Howard v. United States Dep't of Labor, 959 F.2d 234 (6th Cir. 1992).

[Nuclear and Environmental Digest XXI A]
COLLATERAL ESTOPPEL; REFUSAL TO HIRE; APPLICATION FOR SAME JOB DURING APPEAL OF FIRST CASE

In Hasan v. Sargent & Lundy , ARB No. 05-99, ALJ No. 2002-ERA-32 (ARB Aug. 31, 2007), the Complainant had filed an earlier whistleblower complaint grounded in a refusal to hire theory. The ALJ in the earlier case found that the Complainant failed to establish the requisite element of such a complaint of being qualified for the offered position. Moreover, the ALJ in the earlier case found that the Respondent legitimately refused to hire the Complainant for any position. Before the ALJ had issued a decision in the first case, the Complainant sent another job application to the Respondent and then filed a new ERA whistleblower complaint. The ALJ in the second case continued the matter until the appeals in the first case were completed. Those appeals resulted in affirmance of the first ALJ's decision. The second ALJ therefore recommended dismissal based on collateral estoppel. The ARB agreed. The ARB rejected the Complainant's argument that he was applying for different jobs, and therefore different issues were being litigated. The ARB found that record established that in both cases the Complainant was applying for engineering jobs and that the issues were identical, or at worst, substantially the same.

[Nuclear & Environmental Whistleblower Digest XXI A]
COLLATERAL ESTOPPEL; PRIOR ADJUDICATIONS

In Farver v. The Lockheed Martin Corp. , 2000 ERA 29, 2001 ERA 17 (ALJ Apr. 9, 2003), Complainant alleged a variety of adverse employment actions, referencing all prior adverse employment actions as explored in previous whistleblower claims, in addition to the written reprimand and termination underlying the instant complaint. The ALJ in his recommended decision applied principles of collateral estoppel to find that only the more recent reprimand and termination would be considered. The ALJ wrote in regard to the earlier adjudications: "Those complaints are identical to Complainant's prior suit, and they have been finally determined. Complainant cannot bootstrap her former allegations to the instant case. While Complainant is entitled to present her entire history of protected activity, she cannot claim certain conduct of LMES was retaliatory after it has been adjudicated to the contrary and not appealed."

[Nuclear & Environmental Digest XXI A]
ISSUE PRECLUSION; CANNOT BE APPLIED WHERE ALJ'S FIRST RECOMMENDED DECISION IS STILL UNDER REVIEW BY THE ARB

In Agosto v. Consolidated Edison Co. of New York, Inc. , ARB Nos. 98-007 and 98-152, ALJ Nos. 1996-ERA-2 and 1997-ERA-54 (ARB July 27, 1999), Complainant's first complaint alleged, inter alia , that he was retaliated against by the entry into his file of poor performance evaluations after his layoff from an outage. The ALJ, after 13 days of hearings, concluded in his recommended decision that the poor performance evaluations were reasonable evaluations of Complainant's performance and were not retaliatory. Subsequently, Complainant filed a second complaint alleging that he was retaliated against when he was not selected for work for an outage. Upon docketing with OALJ, the case was assigned to the same ALJ; the first case was still pending review by the ARB during the ALJ's handling of the second case. Respondent alleged that the poor performance evaluations were the reason for the Complainant not being rehired.

The ALJ reasoned that collateral estoppel (or issue preclusion) applied to question of whether the performance evaluations were retaliatory, and therefore did not permit Complainant to relitigate this issue. He did permit, however, Complainant to attempt to prove that the performance evaluations were not the basis for the decision not to rehire.

The ARB consolidated the two cases for decision. In reviewing the ALJ's decision on the first case, the ARB found that the ALJ had correctly concluded that the performance evaluations were not retaliatory. In regard to the second case, however, the ARB held that the ALJ erred in characterizing the limitation on the Complainant's presentation of evidence and cross-examination on the performance evaluation issue as being grounded in collateral estoppel. Use of issue preclusion was in error because the ALJ's first decision was a recommended decision, subject to de novo review by the ARB, and therefore, "relevant issues" had not been "decided in the prior proceeding." The ARB observed in a footnote, however, that

The ALJ might have invoked Section 18.403 of the Rules of Practice and Procedure of the Department of Labor's Administrative Law Judges to exclude evidence in Agosto II regarding the facts underlying the performance evaluations. That section provides in pertinent part that "evidence may be excluded if its probative value is substantially outweighed by the danger of confusion of issues, or misleading the judge as trier of fact, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." 29 C.F.R. §18.403.

The ARB concluded that the ALJ's error was harmless given that it had, in the first part of the decision, affirmed the ALJ's finding that the evaluations were not retaliatory.

[Nuclear & Environmental Digest XXI A]
COLLATERAL ESTOPPEL NOT AVAILABLE WHERE PRIOR ALJ DECISION IS PENDING ARB REVIEW

In Parker v. Stone & Webster , 2000-ERA-2 (ALJ Dec. 22, 1999), the ALJ found that Complainant's complaint raised the same allegations and materials submitted in support thereof that were made in a previous case against another Respondent. For some reason, the complaint against different Respondents had been bifurcated by OSHA, investigated separately, referred to OALJ separately, and assigned at different times to different ALJs. The first case had been dismissed on summary judgment by the other ALJ, and the ALJ in the present proceeding issued an order to show cause why Respondent's motion to dismiss based on the findings in the earlier suit that the safety concerns (about a request for fire fighting equipment and asbestos concerns) raised by Complainant were not covered by the ERA (although they might be covered by other laws).

The ALJ found that collateral estoppel could not apply because the first ALJ's recommended decision was still pending on review by the ARB, and therefore there is, as yet, no final decision in that first matter. The ALJ, however, concluded that because Complainant had not responded to Respondent's motion for summary judgment in the present proceeding, he could draw an inference that there are no new allegations or evidence which would connect Complainant's concerns with that of nuclear safety or otherwise differentiate his complaint against the other Respondent. Thus, the ALJ concurring with the ALJ's assessment of the earlier case, Parker v. TVA , 1999-ERA-13 (ALJ July 30, 1999), granted Respondent's motion for summary judgment.

[Nuclear & Environmental Digest XXI A]
COLLATERAL ESTOPPEL; PRIOR RULINGS RELATING TO SAME ORIGINAL COMPLAINT

In Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy , 1999-CAA-4 (ALJ Mar. 10, 1999), the ALJ found that collateral estoppel is applicable in administrative adjudications, and found that Complainant's third complaint, was collaterally estopped by prior administrative adjudications of his first, second, and fourth complaints. In applying the test for application of collateral estoppel, the ALJ first found that the issues were identical. Although Complainant had alleged a new fact -- the existence of a DOE Office of Hearings and Appeals determination relating his claim that a denial of a FOIA fee waiver was retaliatory -- the ALJ held that merely alleging a new fact does not constitute a new and distinct cause of action. Second, the ALJ found that the issues had been actually litigated -- that is, contested by the parties and submitted for determination by the court [each of the prior decisions had been summary decisions]. Finally, the ALJ found that the determination of the issues had been a critical and necessary part of the earlier judgments. Thus, the ALJ concluded that collateral estoppel applied. He went on to find, in the alternative, that the complaint failed to prove essential elements of whistleblower causes of action.

RES JUDICATA; PRIOR SUIT DISMISSED UNDER RULE 41(b) FOR FAILURE TO COMPLY WITH ALJ'S PREHEARING ORDERS
[N/E Digest XXI A]

The law of res judicata is applicable to administrative proceedings when an agency is acting in a judicial capacity. Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties based on the same cause of action. The judgment precludes the parties from relitigating issues that were or could have been raised in that action.

In Billings v. Tennessee Valley Authority , 91-ERA-12 (ARB June 26, 1996), the ALJ had issued prior decisions on complaints that raised the same issues vis-a-vis the Respondents named in the present proceeding. The Board held that even though the substance of these issues was not specifically litigated in the prior cases, the ALJ's recommended decision and order therein constituted a judgment on the merits for res judicata purposes. The ALJ's recommended decision and order was issued pursuant to Fed. R. Civ. P. 41(b) for failure to comply with the ALJ's prehearing orders, was subsequently affirmed by the Secretary, and the courts of appeals denied review.

The Board held that a dismissal order issued under Rule 41(b) operates as an adjudication on the merits unless the dismissal order specifies otherwise, and therefore the instant action was barred by the doctrine of res judicata . The Board noted that it was irrelevant under Rule 41(b) that the ALJ's orders in the earlier proceeding were issued sua sponte .

RES JUDICATA
[N/E Digest XXI A]

Where issues relating to salary increases were litigated and decided in the proceeding relating to Complainant's original complaint (which had later been consolidated with two other complaint proceedings on review before the Secretary of Labor and the Administrative Review Board), the ALJ in a subsequent complaint properly concluded that the salary increase issue was res judicata. Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3, slip op. at 52-53 (ARB June 14, 1996).

XXI A Reapplying for job; getting rejected; and using new rejection to resurrect time barred complaint

In Greenwald v. The City of North Miami Beach, 78- SDW-1 (Sec'y Apr. 3, 1978), the Secretary adopted the ALJ's decision that the 30 day time limitation for filing a complaint under section 1450(i) of the Safe Drinking Water Act, 42 U.S.C. § 300j-9(i), was not tolled or suspended while the Complainant appealed his discharge to the Civil Service Board of the Respondent -- a city government -- since the SDWA provided a legally independent procedure which was equally available to him.

This decision was sustained by the Fifth Circuit. Greenwald v. North Miami Beach, 587 F.2d 779 (5th Cir. 1979), cert. denied, 44 U.S. 826 (1979).

[Editor's note: Greenwald tried an end around this problem by reapplying for employment and then filed a complaint alleging continuing discrimination. The ALJ and the Secretary saw this as attempt to litigate issues that had previously been found time barred, and as an attempt to create a requisite employment relationship (i.e., this was an "applicant" rather than an "employee"). Greenwald v. The City of North iami Beach, 80-SDW-2 (Sec'y Apr. 14, 1980).]

XXI A ALJ decision still pending before Secretary

In Coupar v. Federal Bureau of Prisons, 92-TSC-12 (ALJ May 13, 1994), the ALJ held that the principles of res judicata and collateral estoppel do not apply to the prior decisions of ALJs when the Secretary had not yet issued a final order.

XXI A Prior ALJ proceeding

In Coupar v. Federal Prison Industries/Unicor, 92- TSC-6 and 8 (ALJ June 11, 1992), Complainant had filed two previous DOL complaints that another ALJ had recommended be dismissed on the ground that Complainant, a federal prison inmate, was not an employee within the meaning of the TSCA or the CAA. The ALJ in the instant proceeding held that the prior judgment was not res judicata because it was a recommended decision and not a final order. The ALJ also held that collateral estoppel (or issue preclusion) was not applicable because, being a recommended decision, it was "avowedly tentative". See Luben Industries, Inc. v. United States, 707 F.2d 1037 (9th Cir. 1983) (issue preclusion "should be refused if the decision was avowedly tentative" (quoting Restatement (Second) of Judgments § 13 comment g (1982)).

XXI B Collateral estoppel/issue preclusion; differing burdens of persuasion

The application of issue preclusion was recommended by the ALJ in Ewald v. Commonwealth of Virginia, 89-SDW-1 (Sec'y Apr. 20, 1995). In rejecting the ALJ's recommendation, the Secretary noted that issue preclusion may be invoked in administrative adjudications if:

the issue sought to be precluded "must have been actually litigated, that is, contested by the parties and submitted for determination to the court . . . ."
the issue sought to be precluded "must have been 'actually and necessarily determined by a court of competent jurisdiction' in the first trial".
Preclusion "in the second trial must not work an unfairness."

Slip op. at 7, citing and quoting Otherson v. DOL, 711 F.2d 267, 273 (D.C. Cir. 1983) (Secretary omitted citations from Otherson ). The Secretary added that an exception to application of issue preclusion is that a party should not be precluded from litigating an issue in a second case where the burden of persuasion on the issue was greater in the first case.

In Ewald , the Complainant had simultaneously pursued her DOL ERA complaint and an action in Federal court alleging that her termination violated here constitutional rights of freedom of speech and association. The Federal district court ruled that Complainant's constitutional complaints could not be upheld because her speech did not meet the "but-for" standard of Huang v. Bd. of Governors of the Univ. of N.C., 902 F.2d 1134, 1140 (4th Cir. 1990) -- the complainant must show that "but for" the protected expression the employer would not have taken the alleged retaliatory action. Ewald v. Commonwealth of Virginia Dept. of Waste Management, CA-90-494- R (E.D. Va. Apr. 22, 1991) (available at 1991 U.S. Dist. LEXIS 15828). The Fourth Circuit Court of Appeals affirmed the District Court's ruling. Ewald v. Dept. of Waste Management, No. 91-1583 (4th Cir. July 22, 1992) (table case at 972 F.2d 339; unpublished decision available at 1992 U.S. App. LEXIS 16863).

The Secretary concluded that the burden of persuasion imposed by Huang is markedly different from those routinely applied by the Secretary in environmental whistleblower cases, which prohibit an employer from retaliating against an employee "by reason of" or "because of" the fact that the employee has engaged in protected activity. In order to prevail, a complaint in an environmental whistleblower proceeding need prove by a preponderance of the evidence only that retaliatory motive played a part in the employer's decision to take adverse action against the employee. The complainant does not need to prove that "but for" the retaliatory motive he or she would not have suffered the adverse action. Thus, the district court's finding did not have preclusive effect.

[Nuclear and Environmental Whistleblower Digest XXI B]
CLAIM PRECLUSION; FEDERAL COURT JUDGMENT IN STATE COMMON LAW WHISTLEBLOWER COMPLAINT

Since the Complainant could not have litigated his ERA whistleblower complaint along with his state common law whistleblower complaint in federal court, a federal court judgment in the state claim did not not bar the DOL proceeding. McNeill v. Crane Nuclear Inc. , ARB No. 02-002, ALJ No. 2001-ERA-3 (ARB July 29, 2005).

[Nuclear and Environmental Whistleblower Digest XXI B]
RES JUDICATA ; REFERENCE TO FOURTH CIRCUIT STANDARDS

In Erickson v. U.S. Environmental Protection Agency , ARB No. 99-095, ALJ No. 1999-CAA-2 (ARB July 31, 2001), the ARB remanded the case to the ALJ finding that the ALJ had improperly granted summary decision to Respondent on timeliness issues. Respondent had also raised the assertion that Complainant was precluded from litigating her claim before DOL because she had previously litigated the same issues in other forums. The ALJ had not addressed this issue. The ARB directed on remand that the ALJ address this as a factual issue and consider the facts under the standards in Sedlack v. Braswell Servs. Group, Inc. , 134 F.3d 219, 224 (4th Cir. 1998).

[Nuclear & Environmental Digest XXI B]
COLLATERAL ESTOPPEL; WHETHER OTHER ACTION CAN BE CONSIDERED PERSUASIVE AUTHORITY IF COLLATERAL ESTOPPEL DOES NOT APPLY

In Reid v. Scientech, Inc. , 1999-ERA-20 (ALJ Jan. 28, 2000), Respondent conceded that collateral estoppel did not apply to a state Industrial Commission decision in which a finding was made that unemployment benefits would be denied to Complainant because of insubordination. Respondent, however, asserted that the state commission's finding should be considered persuasive authority. The ALJ declined to afford the state commission's finding the status of persuasive authority because Complainant was not represented by counsel at the state hearing; the appeals examiner did not explore all of the relevant facts in the case and prevented Complainant from asking several important questions during cross-examination and from answering questions during direct examination; the hearing was conducted via telephone which prevented credibility assessments; and finally, the commission's decision is still on appeal in the state court system.

[Nuclear & Environmental Digest XXI B]
RES JUDICATA/COLLATERAL ESTOPPEL; ARBITRATION PROCEEDING

In Paynes v. Gulf States Utilities Co. , ARB No. 98-045, ALJ No. 1993-ERA-47 (ARB Aug. 31, 1999), the ARB noted that the law of res judicata is applicable to administrative proceedings when an agency is acting in a judicial capacity. The Board, however, agreed with the ALJ that claim preclusion was not applicable where a prior arbitration proceeding concerning Complainant's transfer to a lower paying job was grounded in contract law and did not involve the ERA Section 211 complaint before the DOL -- and that issue preclusion was not applicable where the issue of Complainant's job performance was not fully and vigorously litigated in the arbitration proceeding, and the main issue in that proceeding was decided as a matter of contract law.

[Nuclear and Environmental Digest XXI B]
ISSUE PRECLUSION; SUMMARY JUDGMENT

In Ruud v. Westinghouse Hanford Co. , 1988-ERA-33 (ALJ Dec. 8, 1998), Respondent asserted that the ALJ should apply issue preclusion because a Washington State Superior Court granted Respondent's motion for summary judgment and dismissed Complainant's claims (one of which was wrongful discharge) before that court. The ALJ found that issue preclusion did not apply because the Superior Court judge gave no explanation for the grounds or reasoning underlying his decision and made no findings of fact. The ALJ also found that issue preclusion did not apply because it was not readily apparent that the standards of proof were the same for the state claims and the federal claims before the ALJ.

[N/E Digest XXI B]
ARBITRATION PROCEEDING; RES JUDICATA CLAIM AND ISSUE PRECLUSION

In Paynes v. Gulf States Utilities Co. , 93-ERA-7 (ALJ Dec. 3, 1997), Respondent contended that Complainant's ERA complaint was barred by res judicata based on an arbitration proceeding in which Complainant's transfer to a tool room was litigated. The Arbitrator had determined that Respondent's transfer of Complainant to the tool room was invalid as a matter of contract law, but that Complainant's performance was so unsatisfactory as to require a disciplinary demotion to the lowest position with the department. The ALJ reviewed the law of both claim preclusion and issue preclusion, and determined that the arbitration proceeding had no res judicata effect. Claim preclusion was not applicable because Complainant could not have successfully have raised his ERA Section 211 complaint in the arbitration proceeding which was grounded in a breach of contract claim. See Restatement (Second) of Judgments , § 26. Issue preclusion was not applicable because the issue of whether Complainant's actual job performance was not fully and vigorously litigated in the arbitration proceedings, and because the main issue in the arbitration proceeding of the transfer was decided on contract law. See Parklane Hosiery Co. v. Shore , 439 U.S. 322 (1979)(four-part standard for applicable of issue preclusion).

XXI.B. Collateral estoppel; state disciplinary proceeding

In Sawyers v. Baldwin Union Free School District, 85-TSC-1 (Sec'y Oct. 24, 1994), the Secretary considered whether the finding of a state disciplinary panel that the Complainant was guilty of misconduct was binding in the TSC proceeding pursuant to res judicata or collateral estoppel.

Res judicata, or claim preclusion, provides that "a final judgment on the mertis of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that [first] action." Kremer v. Chemical Constr. Corp., 456 U.S. 461, 467 n.6 (1982). Res judicata does not apply where "'[t]he plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy because of the limitations on the subject matter jurisdiction of the courts.'" Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 382 (1985) (citation omitted); Owens v. New York City Housing Authority, 934 F.2d 405, 410 (2d Cir. 19xx), cert. denied, 112 S.Ct. 431 (1991).

Collateral estoppel, or issue preclusion, prevents the relitigation of issues that were actually decided by a court and necessary to its decision if the parties had a full and fair opportunity to litigate them. Kremer, 456 U.S. at 467 n.6, 480-481; Owens, 934 F.2d at 409.

Courts have applied the doctrines of res judicata and collateral estoppel to administrative decisions where the agency was acting in a judicial capacity and resolved disputed issues of fact that were properly before it. See, e.g., University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986).

In the instant proceeding, the Secretary determined that it was appropriate to apply collateral estoppel to the issue of misconduct (tampering with an air quality machine) that was decided by the state hearing panel acting in a judicial capacity, which had the authority to decide. The Secretary noted that the hearing was judicial in nature, and afforded opportunity to introduce and object to evidence, and to cross examine witnesses. Further, both the Complainant and the School District were represented by counsel.

XXI B Collateral estoppel; MSPB decision

In Davis v. Tennessee Valley Authority, 90-ERA-61 (ALJ Oct. 25, 1991), the ALJ held that collateral estoppel was applicable where the same issue was involved in a hearing before the Merit Systems Protection Board, the issue was fully litigated before the MSPB, the issue was a critical and necessary part of the that proceeding, Complainant was represented by counsel during the entire period of litigation before the MSPB. The ALJ relied on N.L.R.B. v. Master Slack and/or Master Trousers Corp., 773 F.2d 77 (6th Cir. 1985), in which the four essential elements of collateral estoppel were described as follows:

the issue precluded must be the same one involved in the prior proceeding;
the issue must actually have been litigated in the prior proceeding;
determination of the issue must have been a critical and necessary part of the decision in the prior proceeding; and
the prior forum must have provided the party against whom estoppel is asserted a full and fair opportunity to litigate the issue.

773 F.2d at 881.

[Editor's note: check Master Slack cite -- there seems to be something wrong with the page number.]

XXI B Res judicata effect of state judgment

In Kosciuk v. Consumers Power Co., 90-ERA-56 (ALJ Jan. 9, 1992), the complainant, subsequent to filing her ERA complaint with the Department of Labor, filed a state court action grounded, in part, on a charge of wrongful discharge- violation of public policy. Specifically, that count alleged in pertinent part: "Because of the Plaintiff's investigation in ferreting out actual and suspected Palisades Power Plant and federal violations, [the complainant] was intimidated, harassed, restrained, coerced and eventually discharged . . . ." She requested the following relief in state court: "unconditional reinstatement as Senior Engineer and a judgment in the amount of $10,000 for compensatory, punitive or exemplary damages together with costs, interest, and attorney fees." The state case was submitted to mediation, and both parties eventually accepted the mediation's evaluation. The trial judge entered judgment for the Plaintiff and ordered that upon payment of the mediation award, "this case is hereby dismissed with prejudice." On the same day, counsel for the Plaintiff signed a Satisfaction of Judgment. The respondent subsequently moved for summary judgment or dismissal of the ERA complaint contending that the state court judgment and dismissal with prejudice is entitled to full faith and credit and triggers the doctrine of res judicata.

The ALJ held that 28 U.S.C. § 1738 requires federal courts to give effect to a state judgment to the extent the state would give its own prior judgment such effect. Under the law of the state involved, Michigan, the doctrine of res judicata bars a litigant from relitigating a claim when:

the former action was decided on the merits;
the matter contested in the second action was or could have been decided in the first; and
the two actions are between the same parties or their privies.

The ALJ found that the parties were the same; the claims in both forums arose from the same core of operative facts; that under ichigan rules, a settlement reached by mediation is in the nature of a consent judgment and that res judicata applies to consent judgments. Hence, he found that the state judgment was entitled to full faith and credit and permits the defense of res judicata.

XXI B Collateral estoppel based on First Amendment whistleblower claim

In Ewald v. Commonwealth of Virginia, 89-SDW-2 (ALJ Oct. 19, 1992), the ALJ applied the doctrine of collateral estoppel to find that the decision of a federal district court, affirmed by the federal court of appeals, barred the Complainant from relitigating critical issues in her Department of Labor complaint. In Ewald , the Complainant had filed a concurrent complaint in U.S. District Court alleging violation of her constitutional rights of free speech and due process. The district court found that there was "no material dispute that [the Complainant's assertedly protected speech] was not the "but for" cause of the discharge." In affirming the district court, the Court of Appeals reflected on the test which must be satisfied to prevail on a First Amendment whistleblower claim, and concluded that the plaintiff must establish that "but for" the protected expression, the employer would not have taken the alleged retaliatory action. The ALJ concluded that the evaluation employed by both the district court and the court of appeals is also a pivotal element in the evaluation of whistleblower litigation by the Secretary of Labor, whether viewed as a mixed motive or pretext case.

The ALJ then considered whether collateral estoppel precluded the Complainant from relitigating the cause of her discharge in the context of the DOL proceedings. Citing Stein, Mitchell, and ezines, Administrative Law (Matthew Bender 1977), Chisholm v. Defense Logistics Agency, 656 F.2d 42 (3rd Cir. 1981), and Nissi Corp., __-SCA-1233 (1990), he concluded that the collateral estoppel is applicable in administrative proceedings, and that the test to be applied is from Montana v. United States, 440 U.S. 147 (1979):

Is the issue identical to that actually decided by the other agency?
Was the issue necessary to the earlier judgment, and
Did the party against whom preclusion would operate have a full and fair opportunity to litigate the issue?

XXI B MSPB decision afforded res judicata weight

In McKinney v. Tennessee Valley Authority, 92-ERA- 22 (ALJ Mar. 17, 1992), the ALJ afforded res judicata effect to the findings of a MSPB decision, see Thompson v. United States Dept. of Labor, 885 F.2d 551 (9th Cir. 1989); Ray v. Tennessee Valley Authority, 677 F.2d 818 (11th Cir. 1982), cert. denied, 495 U.S. 1147 (1983), and granted summary judgment based on the Complainant's violation of 42 U.S.C. § 5851(g), which precludes whistleblower protection for any employee who, acting without direction from his or her employer deliberately causes a violation of any requirement of the Atomic Energy Act. The Respondent presented a MSPB decision that the Complainant violated the Atomic Energy Act when he affirmatively disabled two airtight doors to an airlock which was the passageway between a drywell housing a nuclear reactor and the outside. This action violated the requirement that primary containment integrity be maintained at all times when the reactor is critical or when the reactor water temperature is above 212 degrees fahrenheit and fuel is in the reactor vessel.

XXI B Claim preclusion/issue preclusion

In Kosciuk v. Consumers Power Co., 90-ERA-56 (Sec'y ar. 31, 1994), Complainant filed concurrent ERA section 210 and state law actions concerning her raising of safety concerns about practices at a power plant. The state court action was submitted to state-sponsored mediation, and the parties subsequently accepted the mediation panel's evaluation. Subsequently, a judgment was entered in Complainant's favor. The Secretary disagreed with the ALJ's recommendation that the section 210 complaint is precluded by res judicata.

The Secretary concluded that the section 210 complaint was not barred by claim preclusion "because Complainant could not successfully have raised her ERA Section 210 complaint in the State court action," slip op. at 4-5, and therefore comes within the exception claim preclusion when the "plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts . . . ." Slip op. at 3, quoting Restatement (Second) of Judgments, § 26(1)(c). The Secretary noted that the section 210 issue is reserved for the DOL, and that injunctive relief and compensation were not routinely available in a State court action for retaliatory discharge. (Complainant's state court award was limited to monetary damages for breach of contract)

The section 210 complaint was not barred by issue preclusion or collateral estoppel because the record did not disclose which, if any, issues had been "litigated" as the result of the mediation. Slip op. at 5, citing Restatement (Second) of Judgments, § 27 at 250 (1982).

[Nuclear & Environmental Digest XXI C]
LAW OF THE CASE DOCTRINE APPLIES TO ADMINISTRATIVE ADJUDICATIONS

In Stephenson v. NASA , ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB July 18, 2000), the ARB found that the law of the case doctrine applies to adjudications within administrative agencies. Thus, when the ARB "has ruled on a question of law, the law of the case doctrine binds an administrative law judge acting after a remand of the case."

[Nuclear & Environmental Digest XXI C]
LAW OF THE CASE; DISTINCTION BETWEEN STATING A CLAIM UNDER THE CAA, AND FINDING OF PROTECTED ACTIVITY UNDER THE CAA

See casenote of Stephenson v. NASA , ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB July 18, 2000), supra , under Nuclear & Environmental Digest VII C 3.

[Nuclear & Environmental Whistleblower Digest XXI C]
LAW OF THE CASE; ARB MAY RECONSIDER ORDERS; PREJUDICE TO PARTY AGAINST WHOM RECONSIDERATION DISAVANTAGES RELATES TO NOTICE OF THE INTENT TO RECONSIDER, NOT TO HARM RESULTING FROM CORRECTION OF EARLIER RULING

In Willy v. The Coastal Corp. , ARB No. 97-107, ALJ No. 1985-CAA-1 (ARB Feb. 27, 2004), the ARB held that the "law of the case doctrine" did not prevent it from reconsidering prior DOL orders, including a decision of a prior Secretary of Labor, where necessary to correct clear error, and a manifest injustice, before issuing a final decision of the DOL. The ARB observed that it had previously reconsidered and reversed its prior ruling in other cases. The Board also observed that a final decision had not yet been issued in the case, that a Texas court judgment very similar to the issue to be reconsidered by the ARB was a significant intervening event, and, as discussed elsewhere in the decision, the original ruling was erroneous. The Board held that its decision not to adhere to a prior ruling did not prejudice the Complainant within the meaning of the law of the case doctrine prejudice in this context does not mean harm resulting from the failure to adhere to the prior decision, but rather lack of sufficient notice that the prior ruling is not deemed controlling. Since the Complainant was notified in ARB briefing notices that the ARB would be reconsidering the issue, there was no prejudice.

[Nuclear & Environmental Whistleblower Digest XXI C]
LAW OF THE CASE; EXCEPTIONAL CIRCUMSTANCES STANDARD

In White v. The Osage Tribal Council , ARB No. 00-078, ALJ No. 1995-SDW-1 (ARB Apr. 8, 2003), the ARB applied an "exceptional circumstances"standard to determine that it would not deviate from the doctrine of law of the case to reconsider findings it made in a prior remand decision in the case. The ARB cited in this regard Huffman v. Saul Holdings Ltd. Partnership , 262 F.2d 1128, 1133 (10th Cir. 2001), for the proposition that exceptional circumstances supporting deviation from law of the case doctrine include "(1) a dramatic change in controlling legal authority; (2) significant new evidence that was not earlier obtainable through due diligence but has since come to light; or (3) if blatant error from the prior . . . decision would result in serious injustice if uncorrected." White , slip op. at 2, quoting Huffman, supra .

[Nuclear & Environmental Whistleblower Digest XXI C]
LAW OF THE CASE AS A DISCRETIONARY DOCTRINE

In Ruud v. Westinghouse Hanford Co. , ARB Nos. 99-023, 99-028, ALJ No. 1988-ERA-33 (ARB Apr. 18, 2002), the ARB held that it was "not bound by the 'law of the case' doctrine, which is discretionary and does not limit our power to reconsider our decision prior to final judgment if we determine that our earlier ruling was erroneous." (Citations omitted). In Ruud , the ARB decided to reverse its earlier rejection of a settlement agreement.

[Nuclear & Environmental Digest XXI C]
LAW OF THE CASE; DOES NOT APPLY WHERE THERE IS INTERVENING, CONTROLLING AUTHORITY

In Macktal v. Brown & Root, Inc. , ARB No. 98-112, ALJ No. 1986-ERA-23 (ARB Jan. 9, 2001), the ARB had remanded the case for a recommended decision on attorneys fees on Complainant's successful challenge to a settlement agreement, even though after the settlement agreement had been voided, a hearing on the merits resulted in dismissal of the complaint. Prior to reviewing the ALJ's recommended decision on fees and costs, the ARB issued an intervening, controlling decision in Harris v. Tennessee Valley Authority , ARB No. 99-004, ALJ Nos. 1997-ERA-26 and 50 (ARB Nov. 29, 2000), which held that fees and costs are not available under the statute in a no-fault settlement. Harris is essentially based on the lack of an order by the Secretary finding discrimination the order is a statutory prerequisite to an award of fees and costs. Similarly, in Macktal , there was no order finding discrimination in the circumstances surrounding the settlement agreement, and therefore a statutory prerequisite to an award of fees and costs was missing.

The ARB observed that the "law of the case" doctrine did not preclude it from revisiting the attorney's fee issue where there has been an intervening change in the law. The ARB wrote that the law of the case doctrine

...is a prudential rather than a jurisdictional restriction on a court's authority to reconsider an issue. See Messenger v. Anderson , 225 U.S. 436, 44, 32 S.Ct. 739 (1912). "When intervening legal authority makes clear that a prior decision bears qualification, that decision must yield." Women's Equity Action League v. Cavazos , 906 F.2d 742, 751 (D.C. Cir. 1990). See also, Crocker v. Piedmont Aviation, Inc. , 49 F.3d 735, 738-41 (D.C. Cir. 1995).

Slip op. at 6 n.7.

[Nuclear & Environmental Digest XXI C]
STARE DECISIS; DEPARTURE APPROPRIATE IF EARLIER RULING DOES NOT WITHSTAND SCRUTINY

In Childers v. Carolina Power & Light. Co. , ARB No. 98-077, ALJ No. 1997-ERA-32 (ARB Dec. 29, 2000), the ARB reversed authority to the effect that ALJs do not have the authority to issue subpoenas in whistleblower cases because of the absence of express statutory authority. In regard to the principle of stare decisis, the Board wrote:

Adherence to decisional law promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. "Adhering to precedent is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right." Burnet v. Coronado Oil & Gas Co. , 258 U.S. 393, 406, 52 S.Ct. 443, 447 (1932) (Brandeis, J., dissenting). At the same time, however, stare decisis is not an inexorable command; rather, it "is a principle of policy and not a mechanical formula of adherence to the latest decision." Helvering v. Hallock , 309 U.S. 106, 119, 60 S.Ct. 444, 451 (1940). "[W]hen governing decisions are unworkable or are badly reasoned, [the Supreme Court] has never felt constrained to follow precedent.'" Payne v. Tennessee , 501 U.S. 808, 827, 111 S.Ct. 2597, 2609 (1991) (internal citation omitted). The reasons for reversing an earlier ruling are always sui generis , but if a useful generalization can be made, it is that "[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved. The opposite is true in cases . . . involving procedural and evidentiary rules." Payne , 501 U.S. at 828, 111 S.Ct. at 2610 (internal citations omitted); cf . Director, OWCP v. Greenwich Collieries , 512 U.S. 267, 276, 114 S.Ct. 2251, 2257 (1994) (renouncing earlier conclusion concerning meaning of APA phrase "burden of proof" because first analysis was "cursory" and did not "withstand[] scrutiny").