USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION VI -- REQUEST FOR HEARING

USDOL/OALJ Nuclear and Environmental Whistleblower Digest
DIVISION VI -- REQUEST FOR HEARING

[Last updated August 15, 2008]

VI. Request for hearing: A. Requirement that DOL provide adequate notice of right to request a hearing; B. Complainant's failure to send a copy of the request for a hearing to the respondent; C. Necessity for an "answer" to the request for a hearing; D. Form of request; E. Timeliness

VI A Request for hearing; inadequate notice of rights

Rose v. Secretary of the Dept. of Labor, 800 F.2d 563 (6th Cir. 1986), appeal after remand Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991).

Petitioner informed the Nuclear Regulatory Commission (NRC) investigators that when some equipment malfunctioned and a small amount of nuclear material escaped, an alarm had not sounded because it had been improperly installed. Petitioner's employment was terminated the day after Nuclear Fuel Services, the Employer, received notice of a penalty imposed by the NRC. 56 days after the discharge Petitioner became aware of his claim under the ERA through an attorney and filed a claim with DOL requesting that the 30 day limitations period for filing his claim be waived since he had not been informed of his rights under the ERA until then. The Labor Administrator denied the request and, in violation of 29 C.F.R. § 24.4(d)(1)- (d)92)(i), did not provide petitioner with notice of his right to an administrative hearing. The case was remanded to the administrator for issuance of proper notice.

VI A Certified mail provides constructive notice of Wage & Hour determination

In Miriello v. Carolina Power and Light Co., 87- ERA-17 (Sec'y Jan. 23, 1992) (decision and order to show cause; final decision and order Mar. 20, 1992), the Secretary held that a complainant receives constructive notice of the Wage and Hour determination upon the certified mailing of the letter to him or her.

The applicable regulation, 29 C.F.R. § 24.4(d)(1), requires only that notice of the preliminary determination be given to the complainant by certified mail.

In the instant case, the letter was sent by certified mail to the complainant's correct home address; the post office notified the complainant twice of attempted delivery, but the letter was eventually returned "unclaimed".

Although Part 24 does not address unclaimed mail, 29 C.F.R. § 18.3(d) provides that if a complaint is served by certified mail, service is complete upon mailing to the last know address. See also Fed. R. Civ. P. 5(b) (service of pleadings and other papers by mail is "complete upon mailing").

VI A Notice of right to administrative hearing

Where the Labor Administrator issued a decision stating that the facts were insufficient to warrant tolling the 30 day limitations period (complainant did not file until the 56th day following his discharge because he was not aware of his rights under ERA, 42 USC § 5851 until he consulted with an attorney) but failed to provide notice to the complainant of his right to an administrative hearing pursuant to 29 CFR § 24.4(d)(1)- (d)(2)(i), the case was remanded for issuance of a proper notice. Rose v. Secretary of Dept. of Labor, 800 F2d 563 (6th Cir. 1986). [on remand, complainant exercised the right to an administrative hearing, but was found not to have made a timely filing of the complaint. The dismissal for lack of timeliness was affirmed by the Court of Appeals in Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991) (per curiam).]

VI B Request for hearing

The Complainant's failure to comply with that portion of 29 C.F.R. § 24.4(d)(2)(ii) which provides that "copies of any request for a hearing shall be sent by the claimant to the respondent" was rejected as a ground for dismissal of the complaint because that failure does not affect the validity of the filing of a hearing request where the Complainant timely filed the request with the Chief Administrative Law Judge, the regulation indicates that the copying of the respondent is not jurisdictional, and there was no evidence that the respondent was prejudiced by the delay in notice of the request. Jain v. Sacramento Mun. Util. Dist., 89-ERA-39 (ALJ Aug. 3, 1989), aff'd (Sec'y Nov. 21, 1991).

[Nuclear and Environmental Whistleblower Digest VI B]
REQUEST FOR HEARING; SERVICE AND FILING REQUIREMENTS IN 29 C.F.R. PART 24 ARE NOT JURISDICTIONAL

In Shirani v. Calvert Cliffs Nuclear Power Plant, Inc. , ARB No. 04-101, ALJ No. 2004-ERA-9 (ARB Oct. 31, 2005), the ALJ had dismissed the complaint because the Complainant had not served a copy of his request for a hearing with the Respondent, finding that such failure deprived her of jurisdiction and that the Respondent had been inherently prejudiced by the failure. The ARB reversed. The Board found that the applicable regulations at 29 C.F.R. §§ 24.4(d)(2) and (d)(3) contain no language that makes a party's right to adjudication dependent on compliance with the requirements for service and filing found in section 24.4(d)(3). "[S]ervice requirements, generally, are imposed to afford notice that litigation has commenced, rather than to trigger a court's power to adjudicate a claim." USDOL/OALJ Reporter at 6. The Board also found no inherent prejudice because the regulations ensure that the opposing party learns of the hearing request because the ALJ must notify the parties of a hearing time and place within seven days of receipt of the hearing request. 29 C.F.R. § 24.6(a). The Board found that the Respondent had actual knowledge of the hearing request because the Respondent's in-house counsel communicated with the ALJ within 8 to 9 days of the hearing request. The Board found that the authority the ALJ had relied on had misconstrued the regulatory history of the hearing request regulation to evidence a shift from a "loose" to a "strict" regulatory scheme. The Board found nothing in the regulatory history to contradict its finding that the filing and service requirements are not jurisdictional. The Board observed that "[p]rocedural requirements that an agency uses to control administrative adjudications are presumptively subject to waiver, tolling, and equitable estoppel, i.e., not jurisdictional." USDOL/OALJ Reporter at 9 (citations omitted).

[Nuclear and Environmental Whistleblower Digest VI B]
REQUEST FOR HEARING; FAILURE TO SERVE RESPONDENT DOES NOT DEPRIVE THE ALJ OF JURISDICTION

In Howell v. PPL Services, Inc. , ARB No. 05-094, ALJ No. 2005-ERA-14 (ARB Feb. 28, 2007), PDF | HTM the Complainant filed a request for a hearing on his ERA whistleblower complaint with the Chief ALJ, but failed to serve a copy of that hearing request on the Respondent. The presiding ALJ held that that because of that service deficiency, she lacked jurisdiction to hear the complaint. The ARB reversed the ALJ on this ruling:

Our recent decision in Shirani v. Calvert Cliffs Nuclear Power Plant, Inc. (Constellation Energy Group) held that a party's failure to comply with the service requirements of 29 C.F.R. § 24.4 (d)(3) does not deprive the ALJ of jurisdiction to hear and decide the merits of a whistleblower case brought under the ERA or any other statute that 29 C.F.R. Part 24 covers. We concluded that the plain meaning of the language contained in sections 24.4 (d)(2) and (d)(3) and the regulatory history of these rules cannot be construed as indicating that the Secretary of Labor intended the service requirement to be jurisdictional. Moreover, we held that failure to properly serve a copy of the request for a hearing is not inherently prejudicial.

Slip op. at 3-4 (footnote omitted).

[Nuclear and Environmental Whistleblower Digest VI B]
HEARING REQUEST; RESPONDENTS' FAILURE TO SERVE COMPLAINANT

In Ponzi v. Williams Group International , ARB No. 05-015, ALJ No. 2004-ERA-28 (ARB May 18, 2005), the ALJ had dismissed the Respondents' hearing request with the Office of Administrative Law Judges because of their failure to serve it on the Complainant as required by regulation. On appeal the parties reached a settlement. Thus, the ARB did not decide the issue raised by the ALJ's recommended order of dismissal.

[Nuclear and Environmental Whistleblower Digest VI B]
REQUEST FOR HEARING; FAILURE TO TIMELY SERVE OPPOSING PARTY

In Ponzi v. Williams Group International , 2004-ERA-28 (ALJ Oct. 22, 2004), the ALJ recommended dismissal of the Respondent's request for hearing where the Respondent, which was represented by counsel, failed to serve the Complainant with timely notice of its request for hearing. The regulation at 29 C.F.R. § 24.4(c)(3) provides that a party requesting a hearing shall "on the same day" send a copy of request to the other party. The ALJ found that this was not a mere perfunctory requirement, as it provides notice that the OSHA determination is being challenged and opportunity for the other party to also request a hearing. The ALJ found no evidence that the ARB had ruled on the issue, but that three other ALJs have held that failure of a party in an ERA case to timely serve the other party with a request for a hearing deprives OALJ of jurisdiction to hear and decide the merits of the case. Webb v. Numanco, LLC , 1998-ERA-27 and 28 (ALJ July 17, 1998); Cruver v. Burns International , 2001-ERA-31 (ALJ Dec. 5, 2001); Steffenhagen v. Securitas, AB , 2005-ERA-3 (ALJ Dec. 16, 2003); Shirani v. Calvert Nuclear Power Plant, Inc. , 2004-ERA09 (ALJ Apr. 29, 2004). Compare Hibler v. Exelon Nuclear Generating Co. , 2003-ERA-9 (ALJ May 5, 2003) (no jurisdictional impediment where failure was by a pro se party).

[Nuclear and Environmental Whistleblower Digest VI B]
FAILURE TO PROPERLY SERVE RESPONDENT WITH COPY OF REQUEST FOR ALJ HEARING

In Howell v. PPL Services, Inc. , 2005-ERA-14 (ALJ Apr. 13, 2005), the ALJ found that the Complainant had failed to perfect a timely appeal because he failed to serve his request for a hearing on the Respondent in a timely or acceptable manner. The ALJ concluded that the regulatory time and manner requirements for serving notice on a respondent are substantive and mandatory, and that in the absence of compliance with those requirements, an ALJ does not have authority to consider the appeal. The ALJ cited in support Webb v. Numanco, LLC , 1998-ERA-27 (ALJ July 17, 1998) and Cruver v. Burns Int'l , 2001-ERA-31 (ALJ Dec. 5, 2001).

[Nuclear and Environmental Whistleblower Digest VI B]
CLARIFICATION: STATE OF THE LAW ON FAILURE TO SERVE RESPONDENT WITH COPY OF REQUEST FOR HEARING

In the June 1, 2004 USDOL/OALJ Whistleblower Newsletter, a casenote described the ALJ's recommended decision in Shirani v. Calvert Cliffs Nuclear Power Plant, Inc. , 2004-ERA-9 (ALJ Apr. 29, 2004), in which the ALJ found that the Complainant's failure to serve the Respondent with a copy of his request for a hearing in violation of 29 C.F.R. § 2.4.4(d)(2) and (d)(3) deprived her of jurisdiction over the matter, notwithstanding that OSHA's determination letter did not mention this requirement. An appeal to the ARB has been filed by the Complainant. An Editor's Note observed that the ARB had declined to entertain an interlocutory appeal in Hibler v. Exelon Nuclear Generating Co., LLC , 2003-ERA-9 (ALJ May 5, 2004), in which the ALJ had disagreed with the caselaw relied on in Shirani .

The Editor's Note was not intended to convey that the ARB had supported a contention that failure to serve is fatal to jurisdiction, but rather only that ALJs disagree over the issue of whether failure to serve a respondent with a copy of request for hearing is jurisdictional. Although the ARB has not yet ruled on this issue under the amended Part 24 regulations, the Secretary in Jain v. Sacramento Municipal Utility District , 1989-ERA-39 (Sec'y Nov. 21, 1991) affirmed the ruling of the ALJ deciding that a complainant who failed to serve his request for a hearing on the respondent should not be penalized with dismissal where the respondent has not demonstrated any prejudice.

See also Lerbs v. Buca Di Beppo, Inc. , 2004-SOX-8 (ALJ Dec. 30, 2003), in which the ALJ concluded that the SOX regulation on requesting a hearing was non-jurisdictional and therefore subject to equitable considerations where the Complainant had failed to serve the Respondent with a copy of the hearing request.

[Nuclear and Environmental Whistleblower Digest VI B]
FAILURE TO SERVE COPY OF REQUEST FOR HEARING ON THE RESPONDENT

In Shirani v. Calvert Cliffs Nuclear Power Plant, Inc. , 2004-ERA-9 (ALJ Apr. 29, 2004), the ALJ held that the Complainant's failure to serve the Respondent with a copy of his request for a hearing in violation of 29 C.F.R. § 24.4(d)(2) and (d)(3) deprived her of jurisdiction over the matter, notwithstanding that OSHA's determination letter did not mention this requirement. The ALJ noted her agreement in this respect with the ALJ decisions in Webb v. Numanco, LLC , 1998-ERA-29 (ALJ July 17, 1998), vacated on other grounds Webb v. Numanco, LLC , 1998-ERA-27 and 28 (ARB Jan. 29, 1999) and Cruver v. Burns In't , 2001-ERA-31 (ALJ Dec. 5, 2001).

[Editor's note: In Hibler v. Exelon Nuclear Generating Co., LLC , 2003-ERA-9 (ALJ May 5, 2003), the ALJ denied a motion to dismiss on this ground, expressing disagreement with Webb and Cruver . In Hibler v. Exelon Nuclear Generating Co., LLC , 2003-ERA-9 (ALJ June 4, 2003), the ALJ certified this issue to the ARB. In Hibler v. Exelon Generation Co., LLC , ARB No. 03-106, ALJ No. 2003-ERA-9 (ARB Feb. 26, 2004), however, the ARB denied the request for interlocutory appeal.]

[Nuclear & Environmental Whistleblower Digest VI B]
REQUEST FOR HEARING; FAILURE TO SERVE RESPONDENTS

In Steffenhagen v. Securitas Sverige, AB, et al. , 2004-ERA-3 (ALJ Dec. 16, 2003), the ALJ recommended dismissal of the complaint where Complainant failed to serve the Respondents with a copy of the request for hearing as provided by 29 C.F.R. § 24.4(d)(3). Part of the reason OSHA issued findings adverse to Complainant had been his failure to provide contact information regarding the Respondents named in the complaint. The request for hearing showed service on a number of individuals, but the only named Respondent served was the U.S. Department of Energy. Sixteen other Respondents, including alleged foreign corporations, individuals, and labor unions were not shown as having been served. In an untimely response, Complainant through counsel argued that it was OSHA's responsibility to effect service of the complaint upon Respondents and moved for remand. The ALJ found that Complainant had ample opportunity to provide OSHA with the information needed to conduct its investigation and denied remand. Moreover, OSHA's responsibility to serve the complaint did not relieve Complainant of his responsibility to serve the request for a hearing.

[N/E Digest VI B]
REQUEST FOR HEARING; FAILURE TO TIMELY SERVE NOTICE ON RESPONDENTS

In Webb v. Numanco, LLC , 98-ERA-27 and 28 (ALJ July 17, 1998), Complainant made a timely request for a hearing with the Chief ALJ using one of the prescribed methods of service listed in 29 C.F.R. § 24.4(d), but failed to serve one Respondent on the same day as the request for hearing, but rather served it with notice eight days later using regular mail which, under the regulation, is not an acceptable method of service. Complainant failed to serve the other Respondent by any means of service. Neither Respondent alleged any prejudice due to Complainant's service errors.

The ALJ recommended dismissal of the complaint, finding that even though Complainant made a timely request for a hearing to the Chief ALJ, his failure to serve Respondents with a copy of the request, in a timely manner or by an acceptable method, defeated jurisdiction to hear the matter, even in the absence of a showing of prejudice to the Respondents.

The ALJ came to this conclusion based on an interpretation of the February 9, 1998 amendments to Part 24, and based on two recent decisions of the ARB which had strictly construed the new regulations, Degostin v. Bartlett Nuclear, Inc. , 98-ERA-7 (ARB May 4,1998) (time limit for filing a request for a hearing must be strictly construed) and Staskelunas v. Northeast Utilities Co. , 98-ERA-8 (ARB May 4, 1998) (complainant who relies on alternate means for delivery, e.g. , by mail, assumes the risk that the request may be received beyond the due date). The ALJ distinguished Jain v. Sacramento Municipal Utility , 89-ERA-39 (1989), aff'd (Sec'y Nov. 21,1991) -- in which it was held that the copying requirements were merely directive, rather than jurisdictional -- on the ground that the regulations in effect at that time were more loosely drafted in regard to service on other parties of a notice of hearing.

[Editor's Note (8/12/98): The Assistant Secretary for OSHA has petitioned for ARB review of this decision, arguing that the ALJ erred in this interpretation of the regulations.]

[N/E Digest IX M]
WITHDRAWAL OF COUNSEL

In Gaballa v. Carolina Power & Light Co. , 96-ERA-43 and 98-ERA-24 (ALJ July 7, 1998), Complainant's counsel submitted a motion to withdraw pursuant to 29 C.F.R. § 18.34(g); Complainant, however, filed an opposition to the motion for withdrawal. The ALJ directed Complainant's counsel to submit a statement containing the reasons for his withdrawal for in camera review. The ALJ reviewed the information, and in an order in which discussion was limited so as not to reveal matters that could possibly injure Complainant's case, concluded that counsel should be permitted to withdraw. The ALJ found that there was an irreconcilable rift between Complainant and his counsel relating both to reaching an agreement on fees and the manner in which the case should be handled. The ALJ also observed that section 18.34(g) contains no "good cause" or other criteria for withdrawal, that counsel did not attempt to withdraw at the last moment before trial, and that there was ample time for Complainant to obtain other counsel.

VI C Necessity for "answer" to request for a hearing

In English v. General Electric Co., 85-ERA-2 (Sec'y Feb. 13, 1992) the Secretary noted that she does not interpret 29 C.F.R. Part 24 as requiring an answer to a telegram requesting a hearing.

[Nuclear & Environmental Whistleblower Digest VI C]
FAILURE TO SERVE RESPONDENT WITH COPY OF REQUEST FOR ALJ HEARING

In Hibler v. Exelon Nuclear Generating Co., LLC , 2003-ERA-9 (ALJ May 5, 2003), the Respondent filed a Motion to Dismiss citing lack of jurisdiction, and specifically Complainant's failure to serve Respondent with a copy of his hearing request as provided by the regulations at 29 C.F.R. § 24.4(d)(3). The ALJ denied the motion, observing that the regulation did not state any consequences for failure to serve a Respondent. The ALJ also observed that OSHA's determination letter likewise did not note any consequences for failure to serve a respondent. The ALJ noted that this ruling was in conflict with the ALJs' holdings in Webb v. Numanco, LLC , 1998 ERA 27 (ALJ July 17, 1998) and Cruver v. Burns International , 2001 ERA 31 (ALJ Dec. 5, 2001), but concluded that dismissal was too harsh a result for the pro se Complainant. In Hibler v. Exelon Nuclear Generating Co., LLC , 2003-ERA-9 (ALJ June 4, 2003), the ALJ found that the Respondent had presented a persuasive basis to assert interlocutory jurisdiction because it had demonstrated, as required by 28 U.S.C. § 1292(b), that certification of the jurisdictional issue involves a controlling question of law as to which there is a substantial ground for difference of opinion and immediate appeal of the issue will materially advance the ultimate termination of the litigation.

VI C. Failure of respondent to "answer" the complaint

The complaint filed by the complainant in an ERA whistleblower action is not a "complaint" under the ALJ Rules of Practice, which defines a complaint as "any document initiating an adjudicatory proceeding . . . ." 29 C.F.R. § 18.2(d). A complaint filed with the Wage-Hour Administration under the ETA simply initiates an investigation. 29 C.F.R. § 24.4. A hearing is initiated, after a determination by the Wage-Hour Administrator, by filing a request for a hearing by telegram with the Chief Administrative Law Judge. 29 C.F.R. § 24.4(d)(2). Thus the complainant's motion for default judgment under 29 C.F.R. § 18.5(a) (requiring an answer to a complaint) based on the employer not filing an "answer" to her complaint to Wage-Hour was properly denied by the ALJ. The Secretary also noted that she does not interpret 29 C.F.R. Part 24 as requiring an answer to a telegram requesting a hearing. English v. General Electric Co., 85-ERA-2 (Sec'y Feb. 13, 1992).

VI D Form of request

In Delcore v. Northeast Nuclear Energy Co., 89-ERA- 34 (ALJ Sept. 15, 1989), the ALJ recommended dismissal of the complaint because the Office of Administrative Law Judges never received a telegram request for a hearing.

[Editor's note: Apparently the ALJ was emphasizing the lack of a "telegram," although that is not clear from the Recommended Order of Dismissal. The Secretary never reached this issue because she approved a settlement agreement involving a number of complaints field by Del Core, including this one. See Del Core v. Northeast Nuclear Energy Co., 88-ERA-37 & 38, 89-ERA-34, 90-ERA-5, 33& 34, 91-ERA-51, 92-ERA-3, 12, 17, 18 (Sec'y July 10, 1992).]

[Nuclear & Environmental Whistleblower Digest VI D]
REQUEST FOR HEARING; FAILURE TO USE TELEGRAM (UNDER OLD REGULATIONS)

In Reid v. Niagara Mohawk Power Corp. , ARB No. 00 082, ALJ No. 2000 ERA 23 (ARB Aug. 30, 2002), the ARB agreed with the ALJ's finding that if a hearing request was timely filed, it did not matter that the request was made by facsimile transmission rather than by telegram, as required by the applicable regulation at the time 29 C.F.R. § 24.4(d)(2)(i) (1993). The ARB declined to adopt Respondent's argument that the mode of the request was important because the Complainant had evidently sent the fax to OALJ's administrative offices rather than to the Docket section, the ARB noting that neither the instructions provided by the Wage and Hour Division or the regulations specified that hearing requests had to be directed to the Docket section, but rather, only to the Chief ALJ. The ARB noted that even the current regulations do not specify that a faxed hearing request must be sent to the Docket section.

[Nuclear and Environmental Whistleblower Digest VI D]
REQUEST FOR ALJ HEARING; MANNER OF SERVICE NOT RELEVANT IF REQUEST IS IN FACT TIMELY

In Lazur v. U.S. Steel -Gary Works , 1999-ERA-3 (ALJ May 18, 2000), Employer timely filed its request for hearing, but did so by first class mail rather than the means stated in the regulation at 29 C.F.R. § 24.4(d) (fax, telegram, hand delivery or next-day delivery service). The ALJ concluded in his recommended decision that, as long as the hearing request reaches the Office of Administrative Law Judges within the time limits, the manner of service is not relevant.

VI D Request for hearing by letter rather than telegram

In Daugherty v. General Physics Corp., 92-SDW-2 (ALJ Dec. 14, 1992), the ALJ ruled that the fact that the Complainant's request for a hearing was accomplished by letter rather than by telegram was not grounds for dismissal since the letter was in substantial compliance with the regulations, and since employee protection statutes are not be given narrow hypertechnical readings. The ALJ also determined the timeliness of the request based on the date of mailing rather than the date of receipt.

6 d
VI D Form of request

In Floyd v. Arizona Public Service Co., 90-ERA-23 (ALJ Mar. 19, 1990), the complainant's telegram simply stated that he "hereby appeals the decision of the US Department of Labor, Wage and Hour [Division]." The respondent contended that the complainant's appeal had not been perfected because he had not requested a "hearing" as required by 29 C.F.R. § 24.4(d)(2). The administrative law judge held that the request was sufficient under the circumstances of the case.

[Nuclear and Environmental Digest VI E]
TIMELINESS OF HEARING REQUEST; ATTORNEY WHO FAILED TO MAKE PROVISIONS FOR TIMELY FILING OF HEARING REQUEST WHILE SHE WAS AWAY FOR THE HOLIDAYS

In Comiskey v. BHE Environmental, Inc. , ARB No. 07-055, 2007-CER-1 (ARB July 22, 2008), the ARB affirmed the ALJ's dismissal based on an untimely request for an ALJ hearing where the only explanation proffered for the untimely request was that the Complainant's attorney had been absent from her office during the holiday season and was therefore not available to receive findings, which were issued on December 22, 2006, until January 3, 2007. At the time, the applicable regulations provided only five days from receipt of the OSHA findings to file a hearing request. In the instant case, the Atlanta OSHA regional office had informed the Complainant's attorney, who was also located in Atlanta, on December 19, 2006, that the findings would be sent via certified mail shortly before December 25, 2006. The Respondent received the findings in Cincinnati on December 26, and OALJ received its copy on December 27. As noted, the Complainant's attorney did not receive the certified letter until January 3, 2007. The Complainant filed the hearing request on January 9, 2007.

Noting that the expedited filing requirement for Part 24 had been strictly construed, the ARB faulted the Complainant's attorney for failing to make provisions to ensure that a timely request for a hearing could be filed in her absence. The ARB stated that parties cannot circumvent the regulations' expedited filing requirements by absenting themselves from their offices and making themselves unavailable to accept delivery of the OSHA findings. The ARB found that, especially in this case where the Complainant's counsel had been informed by OSHA that the findings were forthcoming, counsel had an obligation to her client to make arrangements to protect his rights. The ARB was not swayed by the argument that the Complainant's counsel was under the misapprehension that OSHA would also serve the Complainant.

[Nuclear and Environmental Digest VI E]
TIMELINESS OF REQUEST FOR HEARING; OSHA MISINFORMATION ON LENGTH OF TIME TO REQUEST HEARING DOES NOT WARRANT EQUITABLE TOLLING WHERE COMPLAINANT WAS REPRESENTED BY AN ATTORNEY

In Sysko v. PPL Corp. , ARB No. 06-138, ALJ No. 2006-ERA-23 (ARB May 27, 2008), the Complainant's request for an ALJ hearing was not timely filed. The ERA regulations in effect at the time provided five business days to request a hearing. The ARB found that equitable tolling was not warranted, even though OSHA's determination letter mistakenly stated that the parties had 30 days to file the request for an ALJ hearing, and this mistake was allegedly repeated by an OSHA employee in a telephone conversation with the Complainant's attorney. The ARB wrote that "such an error on the part of a government agency does not entitle Sysko's attorney to ignore the regulations under which he filed Sysko's initial complaint. And Sysko's attorney does not explain why he relied on an OSHA investigator's knowledge of the law rather than his own. 'Sysko's attorney could easily have read the regulation that governed Sysko's complaint. His lack of diligence cannot be excused.'" USDOL/OALJ Reporter at 6 (citations omitted).

The ARB also noted that the attorney had indirect notice of the five-day filing requirement in a copy of the OSHA investigator's letter to the Respondent, and that the attorney had admitted that this letter had prompted him to call the regional OSHA office, and that he relied on the OSHA employee, who "read" to him the OSHA "findings and the 29 C.F.R. § 24.4(d)(2) notice which stated that there was a thirty-day appeal period." The ARB stated that while the regulation now provides 30 days in which to request a hearing, the amendment of the regulation was not an exceptional circumstance supporting equitable tolling. Absence of prejudice to the Respondent was not an independent basis for tolling.

[Nuclear and Environmental Digest VI E]
TIMELINESS OF REQUEST FOR HEARING; REGULATION REQUIRES FILING, NOT MERELY SENDING, REQUEST FOR HEARING WITHIN FIVE DAYS OF RECEIPT OF OSHA DETERMINATION

[Nuclear and Environmental Digest VI E]
EQUITABLE TOLLING; FAILURE TO ESTABLISH DUE DILIGENCE; PRO SE STATUS, SCRIVENER'S ERROR, ASSERTED LACK OF PREJUDICE TO OPPOSING LITIGANT

In Salsbury v. Edward Hines, Jr. Veterans Hospital, Dept. of Veterans Affairs , ARB No. 05-014, ALJ No. 2004-ERA-7 (ARB July 31, 2007), the ARB held that the regulation governing the time period for requesting an ALJ hearing in an ERA complaint, 29 C.F.R. § 24.4(d)(2), requires that the hearing request be filed, not merely sent, within five business days of receipt of the OSHA determination. In Salsbury , construing the facts in the light most favorable to the Complainant, the Complainant mailed his hearing request by regular mail within five days of receipt, but put the wrong address on the envelope. Within one or two days upon return of the mis-addressed mail, he sent another request for hearing. By the time the Chief Docket Clerk at OALJ received the hearing request, more than 30 days had passed since receipt of the OSHA determination, and the hearing request was not timely.

The ARB then considered whether equitable tolling should apply, and found that it did not because the Complainant had failed to exercise due diligence. The Complainant admitted that he received notice of OSHA's certified mail but did not take delivery of it. An OSHA investigator then personally delivered the determination letter, whereupon the Complainant did not file the hearing request by fax, telegram, hand delivery or next-day delivery service as specified in the instructions in the OSHA determination, but rather used regular mail. The Complainant offered no evidence that he followed up on his request during the months following his initial mailing of the request, and when he sent his request a second time, he again used regular mail.

The ARB rejected the Complainant's contention that failure to toll the limitations period would be too harsh for a pro se litigant. The ARB also rejected the argument that tolling should be permitted because the Complainant was in substantial compliance with the regulation and merely made a scrivener's error. The Board wrote: "A complainant who relies on alternative means for delivery of his hearing request, e.g., by regular mail, assumes the risk that the hearing request may be received beyond the due date, and therefore be untimely. ... Thus, Salsbury was charged with the duty of ensuring that his hearing request was properly filed. His "scrivener's error" would not have occurred had he followed the specific directions for filing a request for a hearing ...." USDOL/OALJ Reporter at 8-9 (citations omitted). The ARB rejected the Complainant's contention that the Respondent should be estopped from seeking dismissal because OSHA failed to serve the determination by certified mail, the ARB finding that the Respondent could not be faulted for the Complainant's failure to take delivery of the certified letter. The ARB rejected the Complainant's argument that a clerical error should be considered an "extraordinary circumstance" for purposes of equitable tolling. Finally, the ARB rejected the Complainant's argument tolling would not be prejudicial to the Respondent, finding that the Respondent had argued that it would be prejudiced, that lack of prejudice is not an independent basis for tolling, and that it was not the Respondent's burden to show that it would be prejudiced.

VI e Timeliness of request for hearing

In Gavensky v. Northeast Nuclear Energy Co., 93- ERA-53 (ALJ Jan. 7, 1994), the ALJ decided the case based on summary decision where Complainant's request for a hearing was not made until 4 1/2 months after the District Director's notice of denial. The ALJ found no equitable grounds for tolling.

[Nuclear & Environmental Digest VI E]
TIMELINESS OF REQUEST FOR HEARING; CLERICAL ERROR IN ATTORNEY'S OFFICE

In Howlett v. Northeast Utilities , ARB No. 99-044, ALJ No. 1999-ERA-1 (ARB Mar. 13, 2001), a request for a hearing was not filed until sixty-nine business days after the OSHA determination. In the letter requesting the hearing, counsel stated that, because a newly-hired employee misfiled the determination letter, he did not see it until two days earlier. Counsel argued that, because the delay was the result of a clerical error, the ALJ should have tolled the five-day filing requirement. The ALJ did not find this excuse sufficient to justify equitable tolling and recommended that the complaint be dismissed. The ARB affirmed. One Board member dissented based on the equities of case, especially given that in whistleblower cases the public interest is involved. The majority stated that it agreed with the general proposition of the dissent that the Board has the authority to relax or modify procedural rules to promote justice, but found that the facts of the instant case did not warrant a waiver of the time limitation.

[Nuclear & Environmental Digest VI E]
TIME LIMIT FOR REQUESTING HEARING SUBJECT TO EQUITABLE TOLLING

The time limit for filing a request for hearing is not a jurisdictional prerequisite, and is subject to the principles of equitable tolling. Where Respondents filed a request for hearing with the Administrator, but not the Office of the Chief Administrative Law Judge as required by the applicable regulation, but there was no showing of delay that hampered Complainant in litigating her case on the merits (all parties proceeded on the assumption that the request had been filed with the Chief Judge and it was only later that anyone discovered the defect), the ARB agreed with the ALJ that equitable tolling was appropriate. Shelton v. Oak Ridge National Laboratories , ARB No. 98-100, ALJ No. 1995-CAA-19 (ARB Mar. 30, 2001).

[Nuclear & Environmental Digest VI E]
TIMELINESS OF REQUEST FOR HEARING; ACTUAL RATHER THAN CONSTRUCTIVE RECEIPT

In Mastrianna v. Northeast Utilities Corp. ,1998-ERA-33 (ALJ Oct. 26, 1998), OSHA sent a certified letter to Complainant denying his complaint. The United States Postal Service delivered a notice of the certified letter to Complainant's post office box on two dates. Complainant and his counsel, however, had limited access to the post office box, and did not learn of the determination letter until Respondent's counsel faxed them a copy. Complainant filed a request for hearing that was timely if calculated from the date of the fax, but not if Complainant was found to have constructively received the certified letter. The ALJ held that constructive receipt is not a consideration in ERA whistleblower hearing requests, citing Stakkelunas v. Northeast Utilities Co. ,1998-ERA-7 (ARB May 4, 1998). The ALJ also rejected Respondent's contention that Complainant was somehow negligent or irresponsible in his receipt of mail.

[N/E Digest VI E]
TIMELINESS OF HEARING; NEW REGULATIONS REQUIRE FILING WITHIN FIVE BUSINESS DAYS; OLD REGULATIONS REQUIRED FILING WITHIN FIVE CALENDAR DAYS

"Effective March 11, 1998, the filing deadline in ERA whistleblower cases was changed to require filing within five business days of the receipt of the OSHA determination letter. 63 Fed. Reg. 6622 (Feb. 9, 1998), to be codified at 29 C.F.R. §24.4(d)(2)." DeGostin v. Bartlett Nuclear, Inc. , 98-ERA-7 @ n.4 (ARB May 4, 1998); Staskelunas v. Northeast Utilities Co. , 98-ERA-8 @ n.4 (ARB May 4, 1998). The regulation in effect in DeGostin and Staskelunas , however, provided that a hearing must be requested within five calendar days.

[N/E Digest VI E]
TIMELINESS; CASE DOCKETED PREMATURELY

In DeGostin v. Bartlett Nuclear, Inc. , 98-ERA-7 (ARB May 4, 1998), after the ALJ issued a notice of hearing, he discovered that the file did not contain a request for hearing by Complainant, and issued an order to show cause why the case should not be dismissed. Complainant's counsel responded that his client had received the ALJ's notice of hearing and order to show cause before receiving the OSHA determination letter (Complainant had not picked up the certified determination letter, and apparently did not receive it until OSHA re-sent it by regular mail). The ARB accepted the ALJ's recommendation of dismissal because, even construing the time period generously (from the Monday after Complainant actually received the OSHA determination letter), and assuming that Complainant's counsel's response to the order to show cause was a hearing request, it was still untimely. The ARB also noted a lack of basis in the record for tolling the time limit other than Complainant's receiving documents and letters out of chronological order.

To the same effect: Staskelunas v. Northeast Utilities Co. , 98-ERA-8 (ARB May 4, 1998).

[ Editor's note : The situation in DeGostin and Staskelunas was probably caused by premature docketing of the cases by OALJ. Generally, cases are not docketed and assigned to ALJs until a hearing request is received from the complainant or the respondent. Here, the cases probably would have been removed from the docket as erroneously docketed had the ALJ not already issued notice of hearings before the errors were noticed.]

[N/E Digest VI E]
TIMELINESS OF HEARING REQUEST; PERIOD BEGINS WITH COMPLAINANT'S ACTUAL RECEIPT OF OSHA DETERMINATION LETTER

In Staskelunas v. Northeast Utilities Co. , 98-ERA-8 @ n.5 (ARB May 4, 1998), the ARB declined to adopt the ALJ's use of 29 C.F.R. Part 18 to calculate constructive receipt of the OSHA determination letter by Complainant. The ARB indicated that OALJ's rules of practice should not be applied to events taking place prior to OALJ's gaining jurisdiction over the matter. Thus, applying the whistleblower regulations at 29 C.F.R Part 24, the ARB ruled that the time period must be calculated based on a complainant's actual receipt of the OSHA determination letter. The ARB held that the ALJ should determine the actual date of receipt, and insure that there is evidence of that date contained in the record. The ARB noted, however, that "[i]f there is a dispute as to the actual date of receipt, the complainant bears the burden of establishing that his or her request for hearing was timely filed.

[N/E Digest VI E]
TIMELINESS OF REQUEST FOR HEARING

In Shelton v. Oak Ridge National Laboratory , 95-CAA-19 (ALJ Apr. 21, 1998), Complainant moved for reconsideration of an order denying Complainant's motion for default judgment based on Respondents' failure to file a timely request for hearing with the OALJ. Complainant argued that the time period for requesting a hearing stated at 29 C.F.R. § 24.4(3)(i) is jurisdictional, citing Crosier v. Westinghouse Hanford Co. , 92-CAA-3 (Sec'y Jan. 12, 1994) and Backen v. Entergy Operations , 95-ERA-46 (ARB June 7, 1996). The ALJ denied the motion, finding that the the unambiguous holding in both Crosier and Backen , was not that the five day time period for filing a request for a hearing is jurisdictional, but that equitable grounds for modification of the time deadline had not been established. The ALJ also noted that in Ward v. Bechtel Const., Inc. , 85-ERA-9 (Sec'y July 11, 1986), the Secretary had indicated that an untimely request for a hearing may be excused on grounds of mistake, inadvertence, or excusable neglect.

The original order denying default judgment was based on the finding that, although Respondents had failed to file their hearing request with the OALJ, they had timely notified every relevant party; that the parties had an opportunity to prepare and respond to the request, and Complainant had it fact taken a cross-appeal; that the failure to file its appeal with OALJ was a mere clerical error; and there was no showing of prejudice to Complainant. Shelton v. Oak Ridge National Laboratory , 95-CAA-19 (ALJ Aug. 2, 1995).

[N/E Digest VI E]
REQUEST FOR HEARING; TIMELINESS AND OTHER FILING ISSUES

In Staskelunas v. Northeast Utilities Co. , 98-ERA-8 (ALJ Dec. 4, 1997), the ALJ recommended dismissal of the request for hearing because Complainant failed to establish that his notice of appeal was timely. There was no indication in the record on the day Complainant actually received OSHA's determination letter, so the ALJ use the five-day rule of 29 C.F.R. § 18.4(c)(3) to conclude that the appeal letter was late. The ALJ also observed that even if Complainant had received OSHA's determination on the same day that he mailed the hearing request, the request was still untimely because Complainant had chosen to mail the request by certified mail, and that the docket section in Washington, D.C. had not received the request until the sixth day following the date of mailing. The ALJ noted that certified mail was not one of the methods enumerated in the regulations, see 29 C.F.R. § 24(d)(2)(i), and that Complainant therefore assumed the risk that the appeal letter would be delayed in the mail. Additionally, the ALJ noted that OSHA's determination letter had stated the proper methods for filing an appeal.

See also Jackson v. Northeast Utilities Co. , 98-ERA-6 (ALJ Dec. 5, 1997)(no evidence Complainant ever filed a hearing request); Degostin v. Bartlett Nuclear, Inc. , 98-ERA-7 (ALJ Dec. 1, 1997)(convoluted order of Complainant's receipt of various letters and orders not a ground for tolling filing requirement; rather this should have alerted Complainant of need to file timely).

[N/E Digest VI E]
TIMELINESS OF REQUEST FOR HEARING BEFORE ALJ

In Fred v. The Wackenhut Corp. , 96-ERA-8 (ARB Nov. 20, 1997), Wage and Hour had determined in 1992 that Complainant had not timely filed an ERA complaint (the alleged discrimination occurred in 1989; the only credible evidence was that Complainant first contacted DOL in 1992). Three years later, Complainant made an inquiry about the status of her complaint. Wage and Hour wrote back in early 1996, stating that in the event Complainant had overlooked the provisions regarding appealing the findings, she could appeal the 1992 letter by requesting a hearing with OALJ within five days of receipt of the 1996 letter. The ARB held that this information about the time period for requesting a hearing "was erroneous and had no basis in either law or regulation." The ARB held that Complainant "has no appeal rights from a letter responding to a status request regarding allegations made in 1993 [1992?], which were not timely with regard to the alleged discriminatory act in 1989." The ARB also found that the complaint itself was not timely filed.

TIMELINESS OF REQUEST FOR HEARING
[N/E Digest VI E]

Filing periods may, under certain specific circumstances be subject to equitable tolling, such as where the complainant has in some extraordinary way been prevented from asserted his or her rights, or where the complainant raised the specific statutory claim but in the wrong forum. Where, however, the Complainant simply ignored the procedural requirements governing the filing of a request for a hearing, and had notice of those procedural requirements and time limits and failed to comply, the ALJ's recommendation of dismissal was adopted as the final order in the case. Backen v. Entergy Operations, Inc., 95-ERA- 46 (ARB June 7, 1996).

VI E Respondent's failure to file request with OALJ despite service on all other parties

Where the Respondent served all parties with its request for a hearing, but failed to file that request with the Office of Administrative Law Judges, the ALJ found that the mistake was mere clerical error that would not result in dismissal where the only effect of the mistake was delay in the initial processing of the complaint by the OALJ. Shelton v. Oak Ridge National Laboratory , 95-CAA-19 (ALJ Aug. 2, 1995) (pre-hearing order).

VI. E. Timeliness

Effective September 14, 1994, 29 C.F.R. § 24.4(d)(2) is amended to permit the filing of a request for hearing "by facsimile (fax), telegram, hand delivery, or next-day delivery service" within five calendar days of receipt of the Administrator's determination. Copies of the request are to be served on the opposing party on the same day the hearing is requested "by facsimile (fax), telegram, hand delivery, or next-day delivery service." See 59 Fed. Reg. 41874 (Aug. 15, 1994).

VI e Timeliness of request for hearing

In Crosier v. Westinghouse Hanford Co., 92-CAA-3 (ALJ Sept. 9, 1992), the ALJ held that Complainant's request for a hearing was not timely where the District Director's notification was mailed to Complainant on February 24, 1992, and Complainant sent his notice of appeal by Western Union mailgram on Thursday March 12, 1992, which was received by the OALJ on Thursday March 19, 1992. The ALJ found that pursuant to the "five day rule" at 29 C.F.R. § 18.4, service was completed to Complainant on Monday, March 2, 1992, and pursuant to 29 C.F.R. § 24.4(d)(2)(i), Complainant's reply was due on or before Monday, March 9, 1992. In addition, the ALJ noted that Complainant sent his request by mailgram rather than telegram.

[Editor's note: I'm not sure that it's appropriate to apply the five day rule because Part 24 indicates that the triggering period is "receipt," which is arguably actual receipt.]

VI E Timeliness of request for hearing

In Ward v. Bechtel Construction Inc., 85-ERA-9 (Sec'y July 11, 1986), Wage and Hour's determination letter was dated January 9, 1985. Complainant signed for and received the letter on January 11, 1985. The telegram requesting a hearing was sent on January 17, 1985 and received on January 18, 1985.

The Secretary held that the request for a hearing was untimely, and because upon notice from the ALJ that the appeal was untimely, Complainant did not seek relief on grounds of mistake, inadvertence, excusable neglect or any other reason, and therefore the complaint would be dismissed.

[Editor's note: The Secretary's disposition seems to indicate that the time limitation for filing a request for a hearing could be waived upon a persuasive reason.]

VI.E. Timeliness of request for hearing

In Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Jan. 12, 1994), the Secretary noted that 20 C.F.R. § 24.4(d)(2)(i) requires that a complainant file a request for a hearing by telegram to the Chief Administrative Law Judge within five calendar days of receiving the District Director's notice of determination that the complaint is without merit. When the record does not reveal when the complainant actually received the notice, the notice is deemed to have been received according to the five day rule of 29 C.F.R. §18.4(c)(3) (which adds five days to time computations when documents are served by mail). Further, when the prescribed time period is less than seven days, it does not include Saturdays, Sundays, or holidays. 29 C.F.R. § 18.4(a).

[ Editor's note: Crosier asserted that he did not received the Notice in a timely fashion because he was on travel.]

VI.E. Timeliness of request for hearing

In Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Jan. 12, 1994), the Complainant filed his request for a hearing beyond the time allotted under 20 C.F.R. §§ 18.4(a), (c)(3) and 24.4(d)(2)(i). The Secretary concluded that the Complainant's asserted reason for not timely filing the request, that he received the determination notice late because he had been "on travel," did not fit within the prescribed reasons for equitable modification of the time deadlines in the employee protection provision regulations. The Secretary found that being on travel does not come within the only arguable basis for tolling the limit, that a complainant has been prevented in some extraordinary way from asserting his rights. See, e.g., Ellis v. Ray A. Schoppert Trucking, 92-STA-28 (Sec'y Sept. 23, 1992), slip op. at 5 (complainant seeking tolling of employee protection provision time limit due to ill health must show legal incapacity). Therefore, the Secretary found that pursuant to 29 C.F.R. § 24.4(d)(2)(i), the Notice of the District Director of the Wage and Hour Administration became the final order of the Secretary denying the complaint.

VI. E. Timeliness

VI e Timeliness of request for hearing

VI E Timeliness of request for hearing; Wage & Hour Administrator's position on constructive receipt of notice of determination

In Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Dec. 8, 1994) (order denying requests for reconsideration), the Administrator of the Wage and Hour Division of the Department of Labor requested that the Secretary reconsider some ruling he had made in regard to the regulation governing the filing of a request for a hearing. 29 C.F.R. § 24.4(d)(2)(i) (1992). The Secretary had ruled that s ince the record did not show the date of actual receipt of the notice of determination, he would apply the "mailing rule" at 29 C.F.R. § 18.4(c)(3) and deem the notice to have been received on the fifth day after it was mailed. Further, the Secretary ruled that the Complainant had not justified equitable tolling of the deadline for filing a hearing request.

The Wage and Hour Administrator disagreed that the timeliness of a hearing request may be based on constructive receipt of the notice of determination, or that service on a Department official other than the Chief ALJ "cannot serve as an equitable basis for satisfying the requirement of service upon the Chief ALJ." The Administrator contended that these rulings "will deny complainants and respondents their opportunity to timely request a hearing on a determination of the Administrator adverse to their position."

In the original decision, the Secretary had made an alternative finding, ruling against the Complainant on the merits. See Crosier v. Westinghouse Hanford, 92-CAA-3 (Sec'y Jan. 12, 1994). Thus, the Secretary concluded that

[a]lthough the Administrator's arguments concerning the timeliness of the hearing request seem meritorious, it is not necessary or in the interest of economy to reconsider the ruling on timeliness. Even if the hearing request were found to be timely, it would not alter the ultimate outcome: dismissal of the complaint on the merits.