USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION VII -- PROCEEDINGS BEFORE OALJ

Effective September 14, 1994, 29 C.F.R. Part 18 was amended to eliminate the routine filing with the presiding ALJ of most discovery documents, and to provide rules governing the filing and service of documents by facsimile.

In regard to section 18.3(f), faxes will be permitted for filing only when directed or permitted by statute, regulation or order or consent of the presiding judge. Such filings must have a service sheet and a cover sheet. Originals do not have to be sent unless required by the presiding judge or if an original signature is required (e.g., on a complaint). Under section 18.4(d), the time printed on the transmission by the receiving fax machine is deemed the Chief Docket Clerk's date stamp.

See 59 Fed. Reg. 41874 (Aug. 15, 1994).

[Nuclear & Environmental Whistleblower Digest VII A 1]
HIPAA Regulations Governing the Privacy of Health Records

On April 14, 2003, Department of Health and Human Services' "Privacy Rules" governing the release of medical records went into effect for many of entities covered by the regulations. Standards for Privacy of Individually Identifiable Health Information, 45 CFR Parts 160 and 164. The primary purpose of the Privacy Rules is to require health plans and providers to maintain administrative and physical safeguards to protect the confidentiality of health information and protect against unauthorized access. HHS issued the rules in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

HHS' Office for Civil Rights has established a web page www.hhs.gov with links to information about the new rules. In addition, a page has been added to OALJ's web site with links to resources specific to the relationship between the Privacy Rules and judicial and administrative proceedings.

The regulations begin with the premise that "[a] covered entity may not use or disclose protected health information, except as permitted or required by [the regulations]." 45 C.F.R. § 164.502(a). Disclosures, however, are permitted in response to an order of a court or administrative tribunal and in response to a subpoena, discovery request, or other lawful process. 45 CFR § 164.512(e). The rule on disclosures in judicial and administrative proceedings contains some important details. For example:

When disclosing information in response to an order issued by a court or administrative tribunal, a covered entity may only disclose the protected health information expressly authorized by such order. 45 CFR § 164.512(e)(1)(i).

In responding to a subpoena or discovery request, a covered entity must "receive[]satisfactory assurance . . . from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request." 45 CFR § 164.512(e)(1)(ii)(A).

Regulatory history discussing whether employment records are covered by the regulations is found at www.oalj.dol.gov/PUBLIC/RULES_OF_PRACTICE/REFERENCES/Reference_Works/HIPAA_reg_history_employment_records .

[Nuclear and Environmental Digest VII.A.1.]
DISCOVERY; GENERAL PRINCIPLES

In Khandelwal v. Southern California Edison , ARB No. 98-159, ALJ Nos. 1997-ERA-6 (ARB Nov. 30, 2000), the ARB remanded the case for further proceedings before the ALJ. On review, the parties had urged a number of issues relating to discovery; two Board members declined to rule on these issues in light of the disposition of the case. One member, however, issued a concurring opinion providing direction for the ALJ should it be necessary to rule on the discovery issues on remand. The following is an excerpt from that discussion:

    Initially it is noted that the provisions regarding the scope of discovery and the definition of relevant evidence contained in the rules of procedure applicable to ALJ proceedings at Part 18 of Title 29 are generally applicable to this case. ... As discussed by the Board in Seater [ v. Southern California Edison, ARB No. 96-013, ALJ No. 1995-ERA-13 (ARB Sept. 27, 1996), slip op. at 4- 8], the Section 24.6(e)(1) prohibition against the application of formal rules of evidence is consistent with the broad range of circumstantial evidence that may be probative of retaliatory intent. ...

    In employment discrimination cases, the courts have held that discovery should be permitted "unless it is clear that the information sought can have no possible bearing upon the subject matter of the action." ... "In such cases, the plaintiff must be given access to information that will assist the plaintiff in establishing the existence of the alleged discrimination." ... Consistent with this body of case law, the Secretary of Labor and the ALJs have recognized the broad scope of discovery to be afforded parties in whistleblower cases....

    Accordingly, ... a broad view of the extent to which employers' records are properly subject to discovery under the FRCP in employment discrimination cases is required. ... In defining the parameters for discoverable materials, Section 18.14 provides for the discovery of unprivileged, relevant information but does not require that the information, or documents, qualify as admissible evidence. 29 C.F.R. §18.14(a),(b). Specifically, Section 18.14 provides that unprivileged information may properly be sought through discovery if the information is "reasonably calculated to lead to the discovery of admissible evidence." This standard, which is adopted from FRCP 26(b)(1), has frequently been addressed by the courts within the context of employment discrimination complaints. ... More to the point, a number of court decisions explore the extent to which an employer's records may be relevant to a complainant's discrimination theory in a case involving a reduction in force termination. ...

    Before both the ALJ and this Board, Respondent SCE raised the privacy interests of its employees as a bar to the disclosure of certain personnel information that Khandelwal requested. ... Once the party seeking discovery has demonstrated the relevancy of the information or documents sought, the party seeking to avoid disclosure of information or documents that otherwise qualify for discovery bears the burden of establishing a basis for the denial or limiting of discovery. ... Assuming the party seeking to avoid disclosure meets his burden, as noted in the majority opinion ..., the confidential nature of the information sought may nevertheless be ensured without a denial of discovery. For example, the parties may agree to an order ensuring the confidential use of such information.... If the parties cannot reach agreement on the confidentiality issue, the ALJ should evaluate the question of whether to afford protections under 29 C.F.R. §18.15, including the imposition of restrictions on the use of information obtained in discovery, in accordance with these and other court decisions concerning discovery in employment discrimination cases.

Slip op. at 7-9 (citations and footnote omitted).

[Nuclear and Environmental Digest VII.A.1.]
RIGHT TO HEARING AND DISCOVERY

In Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy , ARB Nos. 99-002, 99-063, 99-067, 99-068, ALJ Nos. 1998- CAA-10 and 11, 1999-CAA-1, 4 and 6 (ARB Oct. 31, 2000), Complainant argued that DOL regulations and case law provide a right to take discovery and to be given a fair hearing, and that the ALJ erred in not permitting any discovery or a hearing on the merits. The ARB held that under the circumstances of the cases, Complainant was not entitled to discovery or a trial-type evidentiary hearing. The Board wrote:

The CAA whistleblower protection provision provides that "[a]n order of the Secretary shall be made on the record after notice and opportunity for public hearing." 42 U.S.C. §7622(b)(2)(A). This language does not mean that a trial-type evidentiary hearing must be held in every case. For obvious reasons, evidentiary hearings are required when there are factual issues which must be resolved. Where, as in these cases, it is determined that there is no subject matter jurisdiction over a claim, or that complainant has failed to state a claim upon which relief can be granted, or where there are no material issues of fact in dispute, a trial-type evidentiary hearing is not in order. See, e.g., U. S. v. Consolidated Mines & Smelting Co. , 455 F.2d 432, 453 (9th Cir. 1971) ("It is settled law that when no fact question is involved or the facts are agreed, a plenary, adversary administrative proceeding involving evidence, cross-examination of witnesses, etc., is not obligatory-even though a pertinent statute prescribes a hearing. In such situations, the rationale is that Congress does not intend administrative agencies to perform meaningless tasks.").
As to the right to take discovery, in appropriate circumstances, a trial judge may suspend discovery pending a decision on a motion potentially dispositive of the case. See Hahn v. Star Bank , 190 F.3d 708, 719 (6th Cir. 1999) ("Trial courts have broad discretion and inherent power to stay discovery until preliminary questions that may dispose of the case are determined.") ; Petrus v. Bowen , 833 F.2d 581, 583 (5th Cir.1987) (same); Wyatt v. Kaplan , 686 F.2d 276, 284 (5th Cir.1982) (district judge properly granted defendants' protective order barring discovery prior to decision on pending motion to dismiss for jurisdictional defects). Of course, under certain circumstances it is necessary and proper to allow a party to engage in discovery of facts related to jurisdictional issues prior to ruling on jurisdiction. Thus, for example, the Fifth Circuit has stated:

It is true that the factual determinations decisive to a motion to dismiss for lack of jurisdiction are within the court's power, and that no right to a jury trial exists with regard to such issues . . . . But still the district court must give the plaintiff an opportunity for discovery and for a hearing that is appropriate to the nature of the motion to dismiss. Thus, some courts have refused to grant such a motion before a plaintiff has had a chance to discover the facts necessary to establish jurisdiction . . . . Other courts have refused to uphold such a motion where -- absent an incurable defect in the complaint -- the plaintiff has had no opportunity to be heard on the factual matters underlying jurisdiction . . . .

Williamson v. Tucker , 645 F.2d 404, 414 (5th Cir. 1981). However, in the circumstance of these cases, where the jurisdictional facts are not in dispute, discovery was not warranted.

[Nuclear & Environmental Digest VII A 1]
DISCOVERY; BALANCE BETWEEN NEED FOR BROAD RANGE AND POINT WHEN DISCOVERY IS BEING USED TO HARASS OPPOSING PARTY

In Migliore v. Rhode Island Dept. of Environmental Management , 1998-SWD-3 (ALJ Aug. 13, 1998), the ALJ declined to issue a protective order as requested by Respondent, noting that if Respondent has specific objections, it can state its grounds for objection in response to Complainant's discovery request, and Complainant can submit a motion to compel. The ALJ, however, provided the following "guidance to the parties as they embark upon discovery":

On the one hand, in retaliatory intent cases that are based on circumstantial evidence, fair adjudication of the complaint "requires full presentation of a broad range of evidence that may prove, or disprove, retaliatory animus and its contribution to the adverse action taken." ... In cases filed pursuant to the SWD, the Office of Administrative Law Judges' Rules of Practice provide that material and relevant evidence shall not be excluded unless "unduly repetitious." See 29 C.F.R. Part 24.5(e)(1). ... The question of relevancy is to be more loosely construed at the discovery stage than at trial....
On the other hand, discovery requests should be tailored to the specifics of each case and broad, generalized discovery requests, while well- intentioned at the time of issuance, may lead the fact-finder to infer that the requests are not made in good faith but are designed to harass the opposing party and to greatly prolong/exacerbate the litigation process. There is some point at which past occurrences become too remote to have any real bearing on the matters at issue.

Slip op. at 2 (citations omitted).

In an order several weeks later, the ALJ granted in part Respondent's for a protective order limiting the scope of questioning of 12 deponents, based on the ALJ's conclusion, after reviewing the allegations in the complaint and the parties' respective arguments, that discovery should be limited to activity after August 1, 1995. Migliore v. Rhode Island Dept. of Environmental Management , 1998-SWD-3 (ALJ Sept. 1, 1998). The ALJ found that this limitation struck the appropriate balance between Complainant's right to discovery and Respondent's right to have discovery curtailed to reasonable limits. In the same order, the ALJ granted Respondent's motion to cancel the deposition of Respondent's Director on the ground that the Director is a high government official who should not be subject to deposition without a showing of cause and an inability to gather the information sought through other means. The ALJ ruled, however, that if subsequent discovery disclosed that the Director was an active participant in the allegedly discriminatory conduct, Complainant could seek permission to depose the Director.

[N/E Digest VII A 1]
DISCOVERY; SCOPE; PROTECTIVE ORDER

In Paine v. Saybolt, Inc. , 97-CAA-4 (ALJ Mar. 21, 1997) (prehearing order), the ALJ concluded based on a review various legal authority, including the ARB decisions in Timmons v. Mattingly Testing Services , 95-ERA-40 (ARB June 21, 1996) and Seater v. Southern California Edison Co. , 95-ERA-13 (ARB Sept. 27, 1996), and the DOL regulations at 29 C.F.R. § 18.14(a) and 29 C.F.R. § 24.5(e)(1), that an ALJ should apply a broad scope of relevance, and that "[i]t logically follows that the scope of discovery is even broader." Slip op. at 2 (citation omitted).

In Paine , the ALJ granted a protective order in regard to three items that the ALJ found to be irrelevant to the burdens and possible defenses in a Clean Air Act whistleblower case. The ALJ declined to issue a protective order for documents Respondent asserted were protected on the grounds of attorney-client privilege and/or the work product doctrine where Respondent failed to assert these privileges on a document specific basis but only asserted a blanket privilege.

The ALJ noted that Respondent was not relieved of discovery responsibilities merely because Complainant potentially could obtain the documents through FOIA, citing Young v. Philadelphia Elec. Co. , 87-ERA-36 (ALJ Sept. 15, 1987) (citing Pleasant Hill Bank v. U.S. , 58 F.R.D. 97 (1973) ("Material which is exempt under FOIA is not necessarily privileged for the purposes of discovery.")

VII A 1 Expansive nature of discovery

Generally, as to the expansive nature of discovery in employee discrimination cases, see Holub v. H. Nash Babcock, Babcock & King, Inc., 93-ERA-25 (ALJ June 24, 1993) (prehearing order).

VII. A. 1. Scope of discovery; generally

See 59 Fed. Reg. 41874 (Aug. 15, 1994).

[Nuclear and Environmental Digest VII A 2]
DISCOVERY; REFUSAL TO HIRE CASE; ENTIRE PERSONNEL FILE OF NEWLY HIRED WORKERS; ALJ'S DISCRETION TO LIMIT DISCOVERY

Hasan v. Enercon Services, Inc. , ARB No. 05-037, ALJ Nos. 2004-ERA-22 and 27 (ARB July 31, 2007), the Complainant had applied for jobs advertised on the Respondent's web site, and filed several ERA whistleblower complaints when he was not hired. In discovery, the Complainant sought the "names, qualifications and experience, location, job requirement and clients of those civil/structural engineers [Enercon] hired nationwide" during the relevant time period. The ALJ granted this discovery request, and the Respondent provided that information as well as resumes for 16 engineers it hired during that period. The Respondent also provided the names of the individuals who made the hiring decisions, the reason and procedure behind each new hire, the name of each client the new hires were sent to serve, and an explanation of why the Complainant was not selected. The ALJ, however, did not order discovery of the entire personnel files of each new hire because to do so would constitute an "unwarranted fishing expedition." On appeal, the Complainant argued that the ALJ erred in not ordering the Respondent to provide all documents in its possession concerning the 16 engineers. The ARB agreed with the ALJ , however, that the Complainant had not made a convincing argument as to why he needed the entire personnel file of the newly hired engineers, and found that the ALJ had not abused his discretion in denying an overly broad and unduly burdensome request.

One member of the Board dissented, finding that the ALJ could have given the Complainant access to those items in the personnel files that pertained to the hiring process, without risking disclosure of personal, medical, financial, or similar data relating to the hirees.

VII A 2 Discovery of material denied under FOIA exemption

In Young v. Philadelphia Electric Co., 87-ERA-36 (ALJ Sept. 15, 1987) (memorandum and order ruling on Department of Labor's motion to quash subpoenas), the ALJ ruled that although the Department of Labor had provided certain documents sought by the respondent under the Freedom of Information Act, it was an incomplete remedy because certain of the information was deleted under a FOIA exemption. The ALJ noted that material which is exempt under FOIA is not necessarily privileged for the purposes of discovery. Pleasant Hill Bank v. United States, 58 FRD 97 (1973).

[Nuclear and Environmental Whistleblower Digest VII A 2]
DISCOVERY; ALJ'S DISCRETION TO SUSPEND DISCOVERY WHILE CONSIDERING POTENTIALLY DISPOSITIVE MOTION FOR SUMMARY DECISION

In Santamaria v. U.S. Environmental Protection Agency , ARB No. 04-063, ALJ No. 2004-ERA-6 (ARB May 31, 2006), the ALJ did not abuse his discretion in suspending further discovery after the Respondent filed a potentially dispositive motion for summary decision where the Complainant failed to show how further discovery would have permitted rebuttal of the Respondent's motion. The Respondent's motion had been based on the argument that the Complainant had not engaged in protected activity, and the ARB observed that the Complainant himself should have known whether he engaged in such activity.

[Nuclear and Environmental Whistleblower Digest VII A 2]
DISCOVERY; WHERE COMPLAINANT FAILS TO ALLEGE THAT A NAMED RESPONDENT ENGAGED IN A COGNIZABLE ADVERSE ACTION, ALJ DOES NOT ABUSE DISCRETION IN DENYING A DISCOVERY REQUEST BASED ON A MERE HOPE THAT COMPLAINANT CAN DISCOVER EVIDENCE TO SUPPORT HER ALLEGATIONS

In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), PDF | HTM the Complainant sought discovery of documents held in EPA's Office of the Inspector General (IG) that contained her name on the ground that in an earlier case, the ALJ had found that the IG took retaliatory action against the Complainant when it filed a petition for review of the ALJ's recommended decision. The ARB held that the ALJ did not abuse his discretion in denying this discovery request, observing that "petitioning for review of an ALJ recommended decision and order is not an adverse action; it is a right afforded by law. 29 C.F.R. § 24.8(a)." USDOL/OALJ Reporter at n.5 (citation omitted). The Board cited as authority, " Cf. First Nat�l Bank of Az. v. Cities Serv. Co , 391 U.S. 253, 289-290 (1968) (rule disfavoring summary judgment without discovery does not 'permit plaintiffs to get to a jury on the basis of the allegations in their complaints, coupled with the hope that something can be developed at trial in the way of evidence to support those allegations.')." Id .

[Nuclear & Environmental Whistleblower Digest VII A 2]
DISCOVERY; LIMITATIONS THAT DO NOT AFFECT ABILITY TO DISCOVER FACTS RELEVANT TO ERA GATEKEEPING ELEMENTS

In Hasan v. USDOL , No. 01 9521 (10th Cir. Apr. 26, 2002) (case below 2000 ERA 14), the Complainant presented a refusal to hire complaint. The ALJ and ARB dismissed the complaint because Complainant failed to allege all the elements of a refusal to hire case, as required by the ERA "gatekeeping" provision at 42 U.S.C. § 5851(b)(3). On review before the Tenth Circuit, the Complainant alleged, inter alia , that the DOL decision was in error because he had been denied discovery. The court, however, found that none of Complainant's discovery requests were relevant to the crucial element that he had failed to plead that Respondent hired someone with Complainant's qualifications to fill an open position or that Respondent continued to seek someone with Complainant's qualifications for an open position. Accordingly, the ARB's decision to dismiss the action prior to discovery did not affect Complainant's ability to state a viable claim.

Complainant's discovery had sought (1) any information maintained by Respondent which in any way concerned or mentioned him as well as reports of all verbal contacts with anyone about him; (2) the names, qualifications and experience of all civil/structural/pipe support engineers working for Respondent as well as all contractors, subcontractors, and architectural and engineering firms contracting with respondent in all locations; and (3) all information about any of respondent's employees or other job applicants who had filed whistleblower complaints.

[Nuclear & Environmental Digest VII A 2]
DISCOVERY; UNDULY BURDENSOME REQUEST FOR E-MAIL

In Williams v. Lockheed Martin Energy Systems, Inc. , ARB No. 98-059, ALJ No. 1995-CAA-10 (ARB Jan. 31, 2001), it was not an abuse of discretion for the ALJ to limit discovery on e-mail systems to those which related to Complainant's complaint.

[Nuclear & Environmental Digest VII A 2]
DISCOVERY; LIMITATIONS ON SCOPE

In Hasan v. Burns & Roe Enterprises, Inc. , ARB No. 00-080, ALJ No. 2000-ERA-6 (ARB Jan. 30, 2001), a refusal to hire case, Complainant argued that the ALJ improperly limited discovery by not requiring Respondent to produce a list containing name, qualifications and experience of every civil/structural engineer it employs, regardless of location. The Board wrote:

Under the Secretary's Rules of Practice and Procedure, a party may obtain discovery only for "relevant" information and an ALJ may, upon motion of a party, "make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including [a ruling that] . . . . [c]ertain matters not relevant may not be inquired into or that the scope of discovery be limited to certain matters." 29 C.F.R. §§18.14(a) and 18.15(a) (2000). The Secretary's Rules also state "[t]he Rules of Civil Procedure for the District Courts of the United States shall be applied in any situation not provided for or controlled by these rules, or by any statute, executive order or regulation." 29 C.F.R. §18.1(a).
The Secretary's Rules governing the scope of discovery are substantially the same as those of Fed. R. Civ. P. 26. In Herbert v. Lando , 441 U.S. 153 (1979), the Supreme Court noted that Fed. R. Civ. P. 26 gives district judges ample authority to prevent abuse of the discovery process and encouraged judges to use that authority when necessary. Specifically, the Court stated:

The Court has more than once declared that the deposition-discovery rules are to be accorded a broad and liberal treatment to effect their purpose of adequately informing litigants in civil trials . . . . But the discovery provisions, like all of the Federal Rules of Civil Procedure, are subject to the injunction of Rule 1 that they "be construed to secure the just, speedy, and inexpensive determination of every action." (Emphasis added.) To this end, the requirement of Rule 26(b)(1) that the material sought in discovery be "relevant" should be firmly applied, and the district courts should not neglect their power to restrict discovery where "justice requires [protection for] a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . ." Rule 26(c). With this authority at hand, judges should not hesitate to exercise appropriate control over the discovery process.

The ARB held that under the circumstances - the hiring decision was made in corporate headquarters and Complainant had not shown that such decisions were being made elsewhere - the ALJ acted within the scope of his authority in limiting discovery.

[Nuclear & Environmental Digest VII A 2]
DEPOSITION OF COMPLAINANT; COMPLAINANT ALREADY DEPOSED ONCE

In Graf v. Wackenhut Services LLC , 1998-ERA-37 (ALJ Mar. 9, 1999), Complainant objected to a second notice of deposition on the ground, inter alia , that he had already been deposed once. Respondent sought the second deposition to ask questions about audiotapes secretly made by Complainant or Complainant's friend. Complainant further objected that Respondent already had notice of the existence of the tapes at the time of the first deposition, did not request copies of the tapes until after the deposition, and therefore waived its right to depose him about the contents of the tapes. The ALJ found Complainant's argument unpersuasive, noting that 29 C.F.R. § 18.13 expressly provides that unless the ALJ orders otherwise, the frequency or sequence of depositions is not limited. The ALJ also took into consideration that due to technical problems, the copying of the tapes had taken a long time.

[Nuclear & Environmental Digest VII A 2]
DISCOVERY; REQUEST FOR ALL DOCUMENTS RELATING TO WHISTLEBLOWERS

In Graf v. Wackenhut Services LLC , 1998-ERA-37 (ALJ Mar. 19, 1999), the ALJ found that the following discovery request was overly broad and burdensome: "With the exception of financial data, identify and produce all documents in your possession, custody or control pertaining to whistleblower(s) who were [Respondent's] employees for any time between January 1, 1992 and the present." Thus, the ALJ ordered that "all documents" shall be interpreted to mean a) documents contained in the personnel file; b) documents maintained by the Human Resources Department relating to whistleblower activities; c) all other correspondence and memos maintained by the Human Resources Department relating to whistleblowers; d) memos reflecting in-house investigations into whistleblower complaints, providing that said documents are not privileged; and e) the EAP file ( i.e. , psychiatric evaluations of employees).

The ALJ permitted Respondent to withhold a) settlement agreements; and b) information covered by the attorney client or attorney work product privileges, pursuant to Fed. R. Civ. P. 26(b)(5). To protect the privacy of the employee, the ALJ ordered that information disclosed under this discovery request would be governed by the terms of an earlier protective order.

[N/E Digest VII A 2]
INTERVIEW STATEMENTS; REQUEST FOR ORDER DIRECTING WAGE AND HOUR TO PRODUCE

In Verdone v. Northeast Utilities , 97-ERA-27, 28, 29 and 30 (ALJ May 9, 1997), the ALJ declined to order the Wage and Hour Division to produce Complainants' interview statements submitted during the investigation of the matter. Respondents had filed a FOIA request with Wage and Hour for the statements, but Wage and Hour declined to disclose the documents, citing FOIA exemption 7(c) (unwarranted invasion of personal privacy). The ALJ noted that appeals of FOIA requests are resolved in another forum (appeal to the Solicitor of Labor), and that he would not over step judicial boundaries to order Wage and Hour to produce the documents.

In addition, the ALJ held, even assuming he could order Complainants' to waive their privacy interest in the statements, it was not necessary under the present posture of the case in which there was a pending motion for summary decision that did not require evidence of the statements for resolution. The ALJ, however, did not encourage or prohibit an attempt at discovery of the statements.

[N/E Digest VII A 2]
DISCOVERY; BALANCING TEST WHEN OPPOSED BY CLAIM OF PRIVACY

In Saporito v. Florida Power & Light Co. , 89-ERA-7 and 17 (ALJ Dec. 24, 1996), Complainant attempted to discover the addresses and telephone numbers of certain nonsupervisory/nonmanagerial employees of Respondent in order to depose them. Respondent opposed the discovery on the privacy grounds and because it was not obliged to produce for deposition or hearing nonsupervisory/nonmanagerial personnel. The ALJ applied the Eleventh Circuit's balancing test for determining whether information is discoverable when opposed by a claim of the privilege of privacy: the court must balance the plaintiff's interest in discovering relevant information and the privacy and confidentiality interests of the individuals involved. See Serina v. Alberstson's, Inc. , 128 F.R.D. 290, 292 (M.D. Fla. 1989), citing Farnsworth v. Procter & Gamble Co. , 758 F.2d 1545 (11th Cir. 1985). The ALJ found that the party posing the objection must show the particulars of the expectation of privacy beyond merely conclusory allegations that the employer considers such information to be private and keeps it confidential. Humphreys v. Caldwell , 881 S.W.2d 940, 946 (Tex. App. 1994). In the instant case, the ALJ found that the information sought was not particularly sensitive nor the kind one would expect to be kept in confidence. The ALJ, however, directed that subpoenas be served at the employee's work address.

DISCOVERY; E-MAIL; REQUEST MUST RELATE TO MATERIAL ISSUE OF FACT WITHIN RELEVANT TIME PERIOD AND MUST NOT BE OVER BROAD; IMPACT OF PENDING MOTION FOR SUMMARY DECISION ON UNRELATED ISSUE
[N/E Digest VII A 2]

In Freels v. Lockheed Martin Energy Systems, Inc. , 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), the Board affirmed the ALJ's denial of Complainant's request for production of e-mail and related back-up tapes because most of the discovery requests were designed to help determine the identity of employees having knowledge about a matter concerning which there was no material issue of fact, and which concerned events well outside the 180-day limitations period. For the one request concerning events within the 180-day limitations period, the request was over broad because Complainant was seeking e-mail messages by, to, or about seven employees regardless of whether the messages had anything to do with Complainant's case. In addition, the Board implied that e-mail discovery need not be granted prior to rulings on dispositive motions for summary decision on unrelated issues.

The ALJ had cited several other grounds for denying the e-mail discovery, such as other extensive discovery having already been completed and the time required for searching the e-mail records. The Board noted these grounds, but did not rely on them in affirming the ALJ's denial of the discovery request.

DISCOVERY; APPROPRIATE TO STAY GENERAL DISCOVERY UNTIL DECISION IS MADE ON UNDERLYING JURISDICTIONAL ISSUE
[N/E Digest VII A 2]

In Reid v. Secretary of Labor , No. 95-3648 (6th Cir. Dec. 20, 1996)(unpublished decision available at 1996 U.S. App. LEXIS 33984)(case below, 93-CAA-4), the Sixth Circuit affirmed the ALJ's stay on discovery until after the underlying jurisdictional issue of whether Complainant was a covered employee was decided.

See also Freels v. Lockheed Martin Energy Systems, Inc. , 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), which the Board implied that the ALJ properly denied discovery on e-mail where, inter alia , there were pending dispositive motions for summary decision on unrelated issues.

DISCOVERY; ALJ'S DISCRETION IN LIMITING
[N/E Digest VII A 2]

An ALJ is given wide discretion to limit discovery and his or her ruling will be reversed only when arbitrary or an abuse of discretion. In Robinson v. Martin Marietta Services, Inc. , 94-TSC-7 (ARB Sept. 23, 1996), the Board found that the ALJ did not abuse his discretion in declining to compel responses to Complainant's document requests. The ALJ had not ruled on Complainant's initial discovery request that was styled "Motion for Turnover of Documents," because a party must begin with a request for document production, show that the request was not compiled with, and only then request an order compelling production. After granting a continuance, the ALJ admonished the parties to do their discovery promptly and correctly because he was not inclined to grant further hearing postponements; later, the ALJ denied motions to compel from both parties because they were not submitted in time for him to address the issues prior to the hearing.

EXPEDITED HEARINGS; ALJ ERRS IN LIMITING DISCOVERY OR LENGTH OF HEARING IN ORDER TO COMPLY WITH STATUTORY OR REGULATORY TIME LIMITATIONS, WHICH ARE DIRECTORY ONLY
[N/E Digest VII A 2, VII D 1, VII D 2 and IX I]

In Timmons v. Mattingly Testing Services , 95- ERA-40 (ARB June 21, 1996), the Board severely criticized an ALJ who had limited discovery and the length of the hearing to attempt to comply with statutory and regulatory time limits. The Board noted that the time limits were directory only, and found that the ALJ improperly limited the parties' pre-hearing preparation and the presentation of evidence at hearing. Excerpts from the Board's discussion follow:

The statute and regulations do contain provisions concerning the time within which the Department of Labor's investigation and adjudication of ERA complaints should be completed.... Such provisions have been construed as directory, rather than mandatory or jurisdictional, however, ... and should not interfere with the full and fair presentation of the case by the parties, in accordance with the Administrative Procedure Act, 5 U.S.C. §§ 554(c), (d), 556(d). Moreover, the full and fair presentation of the case by the parties is crucial to serving the ERA purpose of protecting employees from retaliation for acting on their safety concerns.... The importance of safety in the handling of radioactive materials cannot be gainsaid; there is a crucial public interest at stake when issues of non-compliance with safety regulations arise....

* * *

The time constraints placed on the proceedings before the ALJ directly interfered with the parties' opportunity for a full and fair presentation of the case at hearing. In conducting the hearing, the ALJ erred in repeatedly limiting testimony and refusing to admit documentary evidence on relevancy grounds.

VII A 2 DISCOVERY; RESPONDENT'S E-MAIL

In Freels v. Lockheed Martin Energy Systems, Inc., 94-ERA-6 and 95-CAA-2 (ALJ Aug. 22, 1995), the Complainant's discovery requests included searches of E-mail. The parties presented experts differing considerably concerning the amount of time necessary to program and run the searches. The ALJ found in his decision recommending the grant of summary decision against the Complainant that in view of the extensive discovery already completed, the lack of specificity in the Complainant's request for a search of the E-mail, and the time required for such a search, the discovery request would be denied. The Complainant had already deposed eight employees and received about 8,000 pages of documents. The Complainant had not identified any particular message, time frame, or individual in requesting a search of 13 months of E-mail, comprising more than 10 million messages.

VII A 2 Scope of discovery

In Udovich v. Houston Lighting and Power Co., 95-ERA-16 (ALJ Feb. 1, 1995) (prehearing order), the ALJ held that where the complainant does not waive the short statutory and regulatory time frame for processing the complaint, it is inherently inconsistent to permit extensive discovery. The ALJ concluded that the statutory and regulatory time frame is a rule of special application that controls over the 29 C.F.R. Part 18 discovery rules.

VII A 3 Nonparties may not be compelled to produce items pursuant to a discovery request

Nonparties are not subject to any of the authority of an ALJ to compel production of items subject to a discovery request. Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995), slip op. at 9 n.6, citing Malpass v. General Electric Co., 85-ERA-38 and 39 (Sec'y Mar. 1, 1994), slip op. at 21.

[Nuclear and Environmental Digest VII A 3]
DISCOVERY; FAILURE TO PRODUCE CORPORATE REPRESENTATIVE FOR DEPOSITION

In Hobby v. Georgia Power Co. , 1:01-CV-01407 (N.D.Ga. May 23, 2006) (case below ARB No. 98-166, ALJ No. 1990-ERA-30), the Plaintiff was seeking enforcement of a DOL order on his ERA whistleblower complaint, which included as one of the remedies the restoration of stock options. Pursuant to FRCP 30(b)(6), the Plaintiff noticed the deposition of corporate representatives of the Defendant who possessed full knowledge of the reasons for the Defendant's conclusion that full stock options could not be fully restored; but neither such corporate representatives nor the Defendant's counsel appeared for the deposition. The Plaintiff filed a motion for sanctions. Although the Defendant asserted that it had been a misunderstanding, the court found that the Defendant had acknowledged in a letter written after the aborted deposition that it was refusing to produce certain information and witnesses. The court also noted that the Defendant had not filed a motion for a protective order prior to the deposition. Accordingly, the court directed the Defendant to produce a corporate representative responsive to the notice of deposition, and warned that failure to produce such a witness would result in a prohibition on the Defendant "from asserting any issues of fact not supported by sworn evidence (as opposed to counsel's conclusions)." Slip op. at 4.

[Nuclear and Environmental Whistleblower Digest VII A 3]
FAILURE TO COOPERATE IN DISCOVERY; SANCTION OF IRREBUTABLE PRESUMPTION

In Dann v. Bechtel SAIC Co., LLC , 2005-SDW-4, 5 and 6 (ALJ June 1, 2005), the ALJ found that a newly joined Respondent had not been acting in good faith and had made an intentional effort to deny to the Complainants highly relevant information to which they were entitled under the discovery rules (the originally named Respondent had responded in good faith). The ALJ also concluded that the newly joined Respondent may have been intentionally raising frivolous arguments for the purpose of financially and psychologically wearing down the Complainants and the sole practitioner who represented them. Accordingly, the ALJ imposed sanctions on the newly joined Respondent for its failure to comply with an earlier Order requiring it to provide full responses to the Complainants' discovery requests. The ALJ found that "Because many of the discovery requests to which Bechtel Nevada's has refused to fully respond pertain to Bechtel Nevada's motives in barring the Complainants from employment at the Nevada Test Site, it has been determined that the appropriate sanction is to irrebuttably determine for purposes of this proceeding that Bechtel Nevada's actions to bar the Complainants from employment at the Nevada Test Site were motivated at least in part by an intention to retaliate against the Complainants' protected activities...."

The Respondent filed with the ARB an appeal of this Order and a request that the ALJ be disqualified. The ARB issued an Order to Show Cause why the appeal should not be dismissed as interlocutory, and the Respondent subsequently withdrew the appeal.

[Nuclear & Environmental Digest VII A 3]
DEFAULT JUDGMENT; FAILURE TO PROVIDE HIGHLY PROBATIVE EVIDENCE DURING DISCOVERY

In Beliveau v. Naval Underseas Warfare Center , 1997-SDW-1 and 4 (ALJ June 29, 2000), it became apparent, post-hearing, that Respondent had failed to provide highly probative evidence during discovery in regard to Complainant's allegation of an improper relationship between Respondent and Complainant's former counsel. The ALJ found that reopening the record was not a viable option, and in view of the egregious nature of Respondent's failure to respond fully to Complainant's discovery requests, ruled that the appropriate remedy was a ruling adverse to the non-complying party as provided for at 29 C.F.R. § 18.6(d)(2)(ii). Thus, the ALJ held that Respondent interfered with the attorney-client relationship between Complainant and his former counsel that Respondent paid the former counsel to aid it in connection with the whistleblower case before the ALJ. Similar discovery failures resulted in the ALJ finding that Respondent interfered with Complainant's filing of a workers' compensation claim.

This case arose in under a complex set of circumstances. Essentially, Complainant's case was grounded in an allegation that Respondent's actions during implementation of a settlement of an earlier whistleblower case constituted a new whistleblower action. The ALJ found either no adverse action or no animus for most of Complainant's allegations -- but granted a default judgment on the attorney interference and worker's compensation interference claims because of the serious discovery failures. One term of the settlement agreement provided for Respondent's payment of Complainant's attorney's fees for services provided in relation to implementation of the settlement agreement. The information turned over post-hearing indicated that, without Complainant's knowledge, Respondent had paid Complainant's former attorney $281,115.50 in the year following the execution the settlement agreement.

[Nuclear and Environmental Whistleblower Digest VII A 3]
DISCOVERY; SANCTIONS

In Beliveau Naval Undersea Warfare , 1997-SDW-6 (ALJ Apr. 19, 2000), the ALJ had issued an earlier order in which he found that Respondent had failed to comply with a discovery order; the ALJ denied Complainant's motion for default, but as an alternative, invited a petition for costs, including attorneys' fees, caused by Respondent's failure to comply with the discovery order. Complainant then did file a petition for attorneys' fees. Respondent challenged the ALJ's authority to impose monetary sanctions. The ALJ concluded that he did have such authority, writing:

Assuming that §18.6(d)(2) preempts the application of Federal Rule 37(b)(2) to this proceeding, I nonetheless hold that awarding attorneys' fees and costs is a permissible sanction under that section of our Rules. Although §18.6(d)(2) does not specifically list an award of fees and costs as a sanction for the failure to comply with a discovery order, the sanctions listed in subparagraphs (i) to (v) of that subsection are not intended to be the exclusive sanctions available for a party's failure to comply with an administrative law judge's order. For §18.6(d)(2) states that "the administrative law judge ... may take such action in regard thereto [a party's failure to comply with an order] as is just, including but not limited to [subparagraphs (i) - (v)]." (Emphasis added) Therefore, the administrative law judge's authority in applying sanctions for a party's failure to comply with a discovery order is limited only by what is just, not to the specific sanctions listed in subsections (i) to (v) of §18.6(d)(2). It would be difficult to argue that an award of $1330.00 in attorney's fees is not just under the facts of this case, and respondent did not attempt to do so.

The ALJ distinguished two decisions of the Secretary -- Krisik v. Latex Construction Co. , 1995-STA-23 (Sec'y Oct. 30, 1995) and Billings v. Tennessee Valley Authority , 1989-ERA-16 et al (Sec'y July 29, 1992) -- because both of those cases involved pro se complainants -- a circumstance which presents issues not present when the defaulting party is represented by counsel, and because in those cases, the default led to the ultimate sanction of dismissal of the claim -- a circumstance that would have rendered a further sanction of an award of costs merely punitive. The ALJ also noted that the second case involved abandonment not failure to comply with a discovery order.

[N/E Digest VII A 3]
DISCOVERY; PARTIES SHOULD MAKE GOOD FAITH ATTEMPT TO RESOLVE DISPUTES BEFORE ASKING FOR ALJ'S INTERVENTION

In Tracanna v. Arctic Slope Inspection Service , 97-WPC-1 (ARB Nov. 6, 1997), the ARB noted that the Federal Rules of Civil Procedure require parties to seek resolution of discovery disputes prior to filing a motion to compel discovery. See Fed. R. Civ. P. 37(a)(2)(A). DOL's rules of practice and procedure do not contain a similar requirement. See 29 C.F.R. § 18.21. Nonetheless, the ARB stated that "[a]s a practical matter, we encourage parties to make a good faith attempt to resolve discovery disputes without the intervention of an ALJ." Slip op. at 5 n.6.

[N/E Digest VII A 3]
ALJ'S DISCOVERY ORDERS ARE NOT ENFORCEABLE IN FEDERAL DISTRICT COURT

In Rex v. Ebasco Services, Inc. , 87-ERA-6 and 40 (ARB Jan. 7, 1997), the Board interpreted the Secretary's decision in Malpass and Lewis v. General Electric Co. , 85-ERA-38 and 39, slip op at 21-22 (Sec'y Mar. 1, 1994), as having held that only orders for relief under 42 U.S.C. § 5851(b)(2) are enforceable in federal District Courts under 42 U.S.C. § 5851(d), but an ALJ's orders relating to discovery are not.

The Board stated that "the only hearings required by the ERA to be made on the record are those upon which an order for relief to the complainant may be based. Any collateral orders are not required by statute to be made on the record after notice and opportunity for hearing." Slip op. at 3.

VII A 3 DISCOVERY; SANCTIONS FOR FAILURE TO DISCLOSE; ALJ'S RESPONSIBILITY TO ADMIT EVIDENCE TO AVOID REMAND

In Fugate v. Tennessee Valley Authority, 93-ERA-9 (Sec'y Sept. 6, 1995) (complaint dismissed on other grounds), the ALJ refused to allow the Complainant to introduce evidence of an alleged discriminatory act because the Complainant failed to mention it during discovery. The Secretary held that the ALJ should have admitted this evidence because

the Respondent's motion for sanctions for failure to answer an interrogatory relating to this issue indicated that it must have had actual knowledge of the instance prior to the hearing;
the Complainant had consistently maintained that there were other unnamed instances of discrimination;
the record did not reflect that the Respondent had ever moved to compel discovery and that it had waited 19 months after the complaint was filed to commence discovery.

The Secretary also noted that, as a matter of judicial efficiency, evidence such as was prohibited in this case should be admitted to help avoid the necessity of a remand.

VII A 3 Sanctions for alleged discovery violations; ALJ's discretion; privileged materials

In Crosby v. United States Dept. of Labor, No. 93-70834 (9th Cir. Apr. 20, 1995) (unpublished) (case below 85-TSC-2), the Complainant contended on appeal that certain adverse inferences should have been drawn by the ALJ against the Respondent because of the lateness of certain discovery and because it asserted a privilege as to some discovery which was sought. The court stated that the issue of sanctions was within the ALJ's discretion, and that it found no abuse of that discretion. See 29 C.F.R. § 18.6(d)(2)(i). In addition, the court noted that it was not proper to draw adverse inferences from the failure to produce documents protected by the attorney- client and work product privileges. See Wigmore on Evidence § 291 (rev. 1979).

VII A 3 Location of deposition and payment of expenses; recalcitrant party

In Rex v. Ebasco Constructors, Inc., 87-ERA-40 (ALJ ar. 3, 1989) (prehearing order), Complainant objected to the taking of his deposition in Houston unless Respondent paid all expenses and a witness fee. The ALJ ordered Complainant to appear for deposition because Respondent had previously made three good faith attempts to depose Complainant in his current home state of Washington. Complainant was to pay his own costs (the ALJ finding that Complainant was not a witness within the meaning of 29 C.F.R. § 18.24, but a party), but would be allowed to seek reimbursement for those costs if he ultimately prevailed in the litigation.

[Editor's Note: The Secretary found that he "has no authority to order Respondent to pay Complainant's travel expenses where there has been no finding of a violation with a concomitant order to pay compensatory damages." Rex v. Ebasco Constructors, Inc., 87-ERA-6 and 40 (Sec'y Mar. 4, 1994).]

VII A 3 Refusal of witness to appear

In Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 1, 1993), Complainant moved to disqualify Respondent's counsel, for default judgment, and for sanctions against Respondent, based on allegations that Respondent's counsel engaged in questionable tactics such as interference with witnesses and perjury.

The Secretary approved the ALJ's handling of Respondent's refusal to comply with various discovery requests and orders, including in several instances the fashioning of adverse inferences that he would make if Respondent did not comply.

In regard to particular matters:

Complainant was interviewed by Respondent's security officers regarding whether Complainant provided confidential documents to the press with in-house counsel's knowledge that Complainant had spoken to an attorney. This was not grounds for default judgment since the questioning was about a legitimate concern, did not involve environmental matters, and Complainant did not state that he had retained counsel, but only that he had spoken to counsel.
Complainant was not entitled to a directed verdict based on an allegation that Respondent's outside counsel committed perjury or suborned perjury by Respondent's witnesses. It was true that a statement by Respondent's counsel in his opening statement was contradicted by testimony two months later, but that statement was not evidence and was not under oath. There was no showing that the witness contradicted earlier sworn testimony or that the witness gave testimony that he knew to be false.
Complainant was not entitled to default judgment or a new trial because the ALJ did not call four of Complainant's witnesses who were high level executives employed by Respondent. The ALJ had initially ordered that Respondent make at least two of the executive available at the hearing, but Respondent did not comply, and Complainant's enforcement action in United States District Court was unsuccessful. The ALJ did not abuse his discretion in declining to impose a sanction because, as he cogently explained, their testimony was not material.
Complainant alleged that Respondent's counsel interfered with a witness for Complainant, a CNN reporter. The Secretary agreed with the ALJ that CNN was responsible for any pressure brought to bear on the reporter not to cooperate with or testify for Complainant. He also found that since Respondent stipulated that Complainant could use an offer of proof concerning the reporter's testimony as evidence, and since a subsequent affidavit of the reporter was received into evidence by the Secretary, even if there was some interference by Respondent's counsel, the evidence that would have been provided by the reporter was before the Secretary.

VII A 3 Sanctions for failure to attend a deposition

In Billings v. Tennessee Valley Authority, 89-ERA- 16 and 25, and 90-ERA-2, 8 and 18 (Sec'y July 29, 1992), the complainant failed to appear for his deposition, and the respondent requested an order assessing costs against the complainant. The Secretary assumed, without deciding, that the Department of Labor has inherent authority to impose costs, but looked to the regulations to determine if the Department has chosen to assert such authority.

Section 18.1(a) states that the Federal Rules of Civil Procedure "shall be applied in any situation not provided for or controlled by these rules, . . ." ALJs are authorized to "[w]here applicable, take any appropriate action authorized by the [Federal] Rules. . . ." 29 C.F.R. § 18.29(a)(8). The regulations specifically provide, however, for an ALJ to impose sanctions where a party fails to appear for a deposition, and the assessing of costs is not listed as an available sanction. 29 C.F.R. § 18.6(d)(2)(i-v). Cf. Fed. R. Civ. P. 37(d) (allows similar sanctions and also provides for assessing of costs). Because section 18.6 provides for remedying a party's failure to appear for a deposition, the Secretary concluded that the Federal Rules did not apply in that situation. Further, she stated that the Department had not elected to assert any inherent authority it may have to impose costs.

VII A 4 Protection of identities of other whistleblowers

In Management Information Technologies, Inc. v . Alyseka Pipeline Service Co., No. 92-1730 (D.C. D.C. Nov. 2, 1993), the court discussed the importance of protecting the identities of confidential informants in whistleblowing cases. The court balanced the interests of the third party informants against the needs of the defendants to defend themselves and concluded that the identities of the informants were not sufficiently relevant to the issues in the case to subject the informants to possible retaliation. The court noted that defense counsel's failure to made assurances that protections necessary to assure that whistleblowers would not be targeted for reprisal.

[Editor's note: This is not a DOL case, but is based on circumstances related to several DOL whistleblower cases that settled before this Office. It is of interest here mainly because it articulates the interest of informants in confidentiality.]

[Nuclear & Environmental Whistleblower Digest VII A 4]
PRIVILEGE LOG; DISCRETION OF ALJ TO ORDER

In Kaufman v. U.S. Environmental Protection Agency , 2002 CAA 22 (ALJ Oct. 31, 2003), the ALJ ruled that although the OALJ Rules of Practice and Procedure do not mention the production of a privilege log ( see 29 C.F.R. Part 18, e.g. , § 18.14(c) and 18.46), an ALJ has the authority to order such a discovery device. In the instant case, however, the ALJ found no justification for ordering such a log as Complainant had affirmatively stated that he did not seek privileged documents.

[Nuclear and Environmental Whistleblower Digest VII A 4]
PRIVILEGED DOCUMENTS; WAIVER OF PRIVILEGE

In Beliveau, Jr. v. Naval Undersea Warfare Center , 1997-SDW-6 (ALJ May 31, 2000), the ALJ affirmed an earlier finding that Respondent waived any applicable privileges to memorandum by turning that document over to the FBI during the course of an investigation. In this respect, the ALJ relied on United States v. Massachusetts Institute of Technology , 129 F.3d 681 (1st Cir. 1997). The ALJ had before him Respondent's motion for reconsideration, in which it contended that the applicable law is In re Grand Jury Subpoena Duces Tecum , 112 F.3d 910 (8th Cir.), cert. denied , 521 U.S. 1105 (1997), and In re Lindsey , 158 F.3d 1263 (D.C. Cir. 1998), for the proposition that it did not waive its attorney-client privilege in turning over the document to the FBI because that privilege "does not apply to evidence relating to possible criminal conduct during the course of a grand jury or other criminal investigation."

The ALJ was not convinced by Respondent's motion, finding that the cited decisions were strictly limited to grand jury proceedings, and the Respondent's memorandum did not qualify for attorney-client privilege in any case.

As an alternative finding, the ALJ also ruled that respondent's inadvertent disclosure of the memorandum to complainant in discovery waived any applicable privileges, under the standards of both Alldread v. City of Grenada , 988 F.2d 1425, 1433 (5th Cir. 1993) and Transamerica Computer Co. v. International Business Machines Corp ., 573 F.2d 646 (9th Cir. 1978).

[Nuclear & Environmental Digest VII A 4]
DISCOVERY; OMBUDSMAN'S PRIVILEGE

In Sayre v. Alyeska Pipeline Co. , 1997-TSC-6 (ALJ Sept. 2, 1998), the ALJ granted in part and denied in part Complainant's motion to compel the production of certain documents. In regard to Complainant's request for documents pertaining to investigations conducted by Respondent's Employee Concerns Program (ECP) in regard to Complainant's concerns, the ALJ found that neither the self-critical analysis nor the Ombudsman's privilege applied to Complainant's own concerns as raised with the ECP because the confidentiality element had been destroyed by Complainant's consent to release of the documents. The ALJ found, however, that Respondent should review and redact information that identifies such witnesses to whom confidentiality was promised or by whom it was requested.

Complainant also sought an order to compel disclosure of the case file numbers, a detailed summary of findings, and the name of the ECP investigator who investigate retaliatory treatment towards individuals assigned to certain contracts. The ALJ denied this request because it was overbroad, not limited in time or scope, and the information sought fits within the Ombudsman privilege. See Kientzy v. McDonnell Douglas Corp. , 133 F.R.D. 570 (E.D. Mo. 1991)(communication must be one made in belief that it will not be disclosed; confidentiality must be essential to maintenance of relationship between the parties; relationship should be one that society considers noteworthy of being fostered; injury to relationship incurred by disclosure must be greater than benefit gained in correct disposal of litigation). The ALJ found that the potential injury that would be inflicted by release of the information to Complainant would far outweigh the benefit. The ALJ was influenced by the fact that Complainant sought ECP investigations conducted in regard to concerns raised by other employees.

VII A 4 Informer's privilege

In Mackowiak v. University Nuclear Systems, Inc., 82-ERA-8 (ALJ July 25, 1986), settled while under review (Sec'y Apr. 18, 1989), the Director of the Field Office of Investigations (Region 5) of the NRC testified in regard to allegations of deliberate wrongdoing by management personnel of Respondent that he had received from other employees of Respondent on or around the time that Complainant was terminated. On cross-examination, he declined to state the names of the informing employees. Respondent moved to strike based on hearsay upon hearsay and based on inability to make effective cross- examination.

The ALJ noted that hearsay is admissible in administrative proceedings, quoting Calhoun v. Bailar, 626 F.2d 145 (9th Cir. 1980):

Not only is there no administrative rule of automatic exclusion of hearsay evidence, but the only limit to the admissibility of hearsay evidence is that it bear satisfactory indicia of reliability . . . [T]he test of admissibility [requires] that the hearsay be probative and its use fundamentally fair. [citations omitted]

Id. at 148. See also 20 C.F.R. § 18.44(b).

The ALJ also outlined the law regarding informer's privilege, noting that the leading case is Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, and that although Roviaro was a criminal case, its principles have been applied to civil cases in general, and in the administrative context, to claims arising under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. See, e.g., Donovan v. Forbes, 614 F. Supp. 124.

Combining the hearsay and informer's privilege principles, the ALJ concluded that whether the investigator's testimony should be stricken depended on (1) its reliability, (2) whether its use will unduly prejudice the defendant, and (3) whether the NRC's need to protect its sources outweighs the defendant's need for their disclosure. He also considered whether the underlying purpose of section 5851 of the ERA would be served by admission of the testimony.

The ALJ considered in regard to reliability the indicia stated in Calhoun v. Bailor :

the bias of the declarant
whether the statements are signed and sworn as opposed to anonymous, oral, or unsworn
whether or not the declarant is available to testify, and if not, whether no evidence is available,
the credibility of the witness testifying to the hearsay, and
whether or not the hearsay is corroborated by other evidence.

Calhoun , 626 F.2d at 149.

Weighing these factors, the ALJ found the investigator to be a very credible witness and that most of what he testified to was corroborated. He found that Respondent was prejudiced by the testimony, but that it would be alleviated by according little weight to that part of the investigator's testimony that was not corroborated by other evidence. He found that NRC's role in protecting safety of nuclear power plants was of such magnitude that its need to protect its sources outweighed Respondent's need for their disclosure. Finally, the ALJ found that the underlying purpose of the employee protection provision of the ERA would not be served if an employee who gave evidence of prohibited discrimination on behalf of a fellow employee could incur similar discrimination as a consequence.

The ALJ, therefore, admitted the testimony, but gave little weight to uncorroborated allegations, and no weight to unsupported expressions of opinion concerning the motives Respondent's management personnel.

VII A 4 Informant's privilege

In United States Dept. of Labor v. Jacksonville Shipyards, Inc., 89-OFC-1 (Sec'y July 19, 1990), the Secretary quoted from a leading case on the applicable principles for balancing the competing interests when the Department invokes informant's privilege to protect the identities of confidential informants:

The law is clearly established that the privilege asserted here is a qualified one, not absolute, limited by the underlying purpose of the privilege as balanced against the fundamental requirements of fairness and disclosure in the litigation process. . . . [T]he interests to be balanced . . . are the public's interest in efficient enforcement of the Act, the informer's right to be protected against possible retaliation, and the defendant's need to prepare for trial.

Jacksonville Shipyards, 89-OFC-1, slip op. at 4-5, quoting Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 305 (5th Cir. 1972).

The Secretary indicated that witnesses who were not volunteer whistleblowers, but who were chosen for interview by the government may be especially entitled to protection against possible retaliation.

[Nuclear and Environmental Digest VII A 5]
SEALING OF RECORD; AGREEMENT OF PARTIES ALONE IS INSUFFICIENT; PUBLIC HAS A RIGHT TO ACCESS; FILING OF REDACTED DOCUMENTS FOR PUBLIC FILE

Newport v. Calpine Corp. , 2007-ERA-7 (ALJ Feb. 12, 2008), the ALJ denied the parties' motion for entry of stipulated protective order where it not only covered discovery disclosures, but also materials submitted into the administrative record, such as materials submitted with a dispositive motion, trial evidence, and portions of the trial transcript, and where the proposed order failed to make the showings requisite to permit the sealing of materials in an ALJ hearing or to provide for the submission of redacted documents for the public file.

The ALJ stated the general rule as follows: "[M]aterial a party receives in discovery, and discovery deposition transcripts may be treated as confidential until they become proof offered into the adjudicatory record. Thereafter common law traditions of access to adjudicatory proceedings and the First Amendment complicate matters, as do the Administrative Procedure Act and FOIA."

The ALJ then reviewed the provisions of the APA, FOIA, the First Amendment, the common law relating to public access to court records, and the OALJ rules of practice, and found that litigants are not entitled to a sealing of information merely because the litigation opponent does not challenge a motion for such. Rather, there is a public right of access to materials filed, and the proceedings in, an administrative adjudication.

The ALJ described the procedure parties must follow when seeking to file a document under seal. They must, for example, "specify the type of confidential data the document includes, and for briefs or memoranda (as opposed to evidence), why it was necessary and relevant to include confidential information in the argument at all. A redacted copy must be filed in the public record. If a sealed filing is permitted, both the redacted and unredacted documents shall be retained as part of the adjudicatory record. Each page of the public copy shall be redacted to the least extent necessary to protect the type of confidentiality involved." The ALJ granted the parties the opportunity to amend their proposed order.

VII A 5 Discovery; scope; objections; protective orders

From: Mulligan v. Vermont Yankee Nuclear Power Corp., 92-ERA-20 (ALJ Apr. 17, 1992) (prehearing order).

[T]he mere fact that interrogatories are lengthy or that the defendant will be put to some trouble and expense in preparing requested answers is not alone sufficient to warrant a protective order relieving defendant from the burden of answering. Klausen v Sidney Printing & Publishing Company, 271 F. Supp. 783 (D.C. Kan. 1967). Moreover, good cause is not established solely by showing that discovery may involve inconvenience and expense. Isaac v. Shell Oil Company, 83 F.R.D. 428 (D.C. Mich. 1979). Plaintiffs in equal employment cases should be permitted a very broad scope of discovery. Morrison v. City and County of Denver, 80 F.R.D. 289 (D.C. Colo. 1978). Interrogatories seeking answers that would tend to establish a pattern of discriminatory employment practices were proper subject of discovery in employment discrimination suit, notwithstanding that complainant brought suit only on behalf of himself Johnson v. W.H. Stewart Co., 75 F.R.D. 54I (D.C. Okla. 1976). Defendant company, in civil rights action challenging hiring and promotion policies, could be required to disclose whether different scores on tests required for promotion were required for promotion to different levels, and if so, what scores were required for each line of progression. King v. Georgia Power Co., 50 F.R.D. 134 (D.C. Ga. 1970).

However, assertions that requested discovery would be both burdensome and oppressive are proper grounds for objecting to the scope of discovery. Alexander v. Rizzo, 50 F.R.D. 374 (D.C. Pa. 1970). Discovery is not allowed where the evidence sought would be wholly irrelevant and incompetent. O'Brien v. Equitable Life Assur. Soc., 14 F.R.D. 141 (D.C. Mo. 1953). The scope of relevancy in discovery proceedings is broader than at trial. Independent Productions Corp. v. Loew's, lnc., 30 F.R.D. 377, 381 (D.C. N.Y. 1962). Moreover, it is important to note that relevancy to the subject matter of the litigation is what must be shown and there is no requirement that the information sought be admissible at trial. Determinations on admissibility are made at trial. Natta v. Zletz, 405 F.2d 99, 101 (7th Cir. 1968); Covey Oil Co. v. Continental Oil Co., 340 F.2d 993, 998 (1Oth Cir. 1965), cert. denied, 380 U.S. 964, 85 S.Ct. 1110 (1966); Coca-Cola Bottling Co. v. Coca-Cola Co., 107 F.R.D. 288, 293 (D.C. Delaware 1985). In order to guard against the possible use of genuinely confidential documents by a third party, a party ordered to produce such documents should move for a protective order. Duplan Corp. v. Deering Milliken, Inc , 397 F. Supp. 1146 (D.C. S.C. 1975). Disclosure of confidential information should be made available to counsel and technical experts assisting in that particular litigation. Melori Shoe Corp. v. Pierce & Stevens, Inc., 14 F.R.D. 346 (D.C. Mass. 1953). Counsel may agree on proper conditions and precautions in connection with discovery of confidential information and if they cannot do so, the court will prescribe such conditions in a protective order. V.D. Anderson Co. v. Helena Cotton Oil Co., 117 F. Supp. 932, 948- 949 (D.C. Ark. 1953).

In most cases the key issue is not whether the information will be disclosed but under what conditions. The need for the information is held paramount but reasonable protective measures may be imposed to minimize the effect on the party making the disclosure. Guerra v Board of Trustees of California States Universities and Colleges, 567 F.2d 352 (9th Cir. 1977). Under a protective order, names of customers are proper subject for discovery. Chesa Intern. Ltd. v. Fashion Associates, 425 F. Supp. 234 (D.C. N.Y. 1977).

Most noteworthy are the comments of Judge John W. Oliver in Apco Oil Corp v. Certified Transp., Inc., 46 F.R.D. 428, 431 (D.C. Mo. 1969):

Experience has further established that counsel of the competence of counsel engaged in this case rarely find it necessary to resort to motions for protective orders because both sides recognize that the question presented is not whether documentary data is going to be ordered produced, but when, how, and in what form, such production will be ordered.

In Mulligan , the ALJ determined that in view of the almost twelve-year period of time encompassed by Complainant's Interrogatories was unduly broad, burdensome and oppressive and that the pertinent area of inquiry herein shall commence on the date the Complainant alleged that he was making internal safety complaints.

In addition, the ALJ concluded that the personal privacy of the employees of Respondent who are encompassed by certain interrogatories should be respected, but was not yet prepared to give a blanket exemption of confidentiality to all information about Respondent's employees who were and/or are similarly- situated with the Complainant as there are various ways by which the employees' names, for example, might be disclosed, while protecting information such as test scores, employment action;, etc;. The ALJ required the parties to further discuss how to best safeguard the personal privacy rights of Respondent's other employees, and to bring up the issue again if something could not be worked out.

[Nuclear and Environmental Whistleblower Digest VII A 5]
DISCOVERY; APPLICATION OF FRCP 33 TO QUESTION OF WHETHER NUMBER OF INTERROGATORIES IS EXCESSIVE; DISCRETION OF ALJ

In Dann v. Bechtel SAIC Co., LLC , 2005-SDW-4, 5 and 6 (ALJ May 25, 2005), the Respondent requested a protective order on discovery, in part, on the ground that the Complainants had submitted an excessive number of interrogatories. The ALJ observed that "although Rule 33 of the Federal Rules of Civil Procedure normally limits parties in civil litigation to 25 interrogatories, Rule 33 also permits judges to authorize larger numbers of interrogatories in appropriate cases, as commonly occurs in whistleblower proceedings before the Office of Administrative Law Judges." The ALJ found that the such an exception was appropriate in the instant case based on the Complainants' representations that the interrogatories were in lieu of depositions and because many of the interrogatories required only simple, short answers.

[Nuclear and Environmental Whistleblower Digest VII A 5]
DISCOVERY; PROTECTIVE ORDER FROM UNDULY BURDENSOME INTERROGATORIES

In Dann v. Bechtel SAIC Co., LLC , 2005-SDW-4, 5 and 6 (ALJ May 25, 2005), the ALJ granted, in part, the Respondent's request for a protective order limiting discovery. A number of the Complainants' interrogatories appeared to require the Respondent to obtain information from third parties and possible third-party witnesses. The ALJ ruled that the Respondent would only be required to supply information now within its possession and would not be required to speculate concerning another Respondent's intentions or obtain any responsive information from the other Respondent, and that the Respondent would not be required to interview witnesses to obtain information not already known to it in response to interrogatories. The ALJ found that a large number of the Complainants' interrogatories asked the Respondent to provide or identify "each and every" fact, document, and witness having knowledge concerning a particular topic. The ALJ ruled that the Respondent could interpret such requests as calling only for each material fact, document containing material information, and witness with knowledge of material information (material facts and information to mean those that could have probative value in the proceeding). A couple interrogatories appeared to seek the same information; thus the Respondent was permitted to respond to only one of the two. Several interrogatories asked the Respondent to provide information demonstrating the non-existence of alleged facts; the Respondent was permitted not to respond to these interrogatories. Finally, the ALJ found that several interrogatories were not in fact seeking relevant information, but were instead merely argumentative and rhetorical; the Respondent was permitted not to respond to those interrogatories.

[Nuclear and Environmental Whistleblower Digest VII A 5]
SUBPOENA AUTHORITY OF ALJ; PROTECTIVE ORDER TO PROTECT PRIVACY AND CONFIDENTIAL MATTERS TO EXTENT POSSIBLE

In Williams v. Indiana Michigan Power Co. , 2004-ERA-24 (ALJ Nov. 9, 2004), the Respondent had served a subpoena on a non-party company seeking information about the Complainant's work for that company. The non-party company moved to quash the subpoena on the theory that ALJs do not have the authority to issue a subpoena to a non-party. The ALJ rejected this contention based on the ARB decision in Childers v. Carolina Power & Light Co ., ARB No. 98-077, ALJ No. 1997-ERA-32 (ARB Dec. 29, 2000), which found that ALJs have subpoena power in ERA cases and which made no distinction between parties and non-parties. The ALJ found that Childers was controlling. He noted the decision of the District Court for the District of Columbia in Bobreski v. U.S. Environmental Protection Agency , 284 F.Supp.3d 67 (D.D.C. 2003) (which held that ALJs do not have supboena power in such cases), but found that it was not controlling as the instant case arises and would be heard in Michigan. The ALJ analyzed the type of information requested - which was specific to the Complainant and did not include any business information or trade secrets -- noted that under the non-party employer's guidelines the Complainant could sign a release, that the non-party employer's primary concern appeared to be (understandably) to protect the privacy rights of employees, that the Complainant and Respondent in the instant case had agreed to a protective order, and that the non-party employer had moved for a protective order if the motion to quash was denied. In view of all of this, the ALJ denied the motion to quash the subpoena and found that the protective order satisfied the needs of the non-party employer.

[Nuclear and Environmental Whistleblower Digest VII A 5]
EVIDENCE; PROTECTION OF CONFIDENTIAL OR PRIVILEGED INFORMATION

In Wallace v.CH2M Hill Group, Inc. , 2004-SWD-3, the ALJ addressed the problem of protecting purportedly confidential information disclosed in the course of an administrative adjudication. In Wallace v.CH2M Hill Group, Inc. , 2004-SWD-3 (ALJ Nov. 3, 2004), the ALJ denied a motion for a protective order filed by the Respondent where there were no declarations or affidavits offered in support of the motion and the Respondent's treatment of the issues involved was too superficial. The Respondent's motion would have covered both materials made available in discovery but never filed with the ALJ, and pleadings and evidence that would become subject to FOIA as records of the Secretary of Labor. The ALJ noted that there is a presumptive right of access to adjudicative filings, including before Article I tribunals. The ALJ granted the Respondent time to submit additional evidence and argument regarding the ALJ's authority and the procedures to be followed. The ALJ later issued a protective order governing the production and use of confidential information during the pendency of the action and thereafter. Wallace v.CH2M Hill Group, Inc. , 2004-SWD-3 (ALJ Dec. 6, 2004) ("Protective Order"). In a separate order, the ALJ voiced doubt that pleadings, motions and materials filed in the record as evidence may be shielded from public disclosure, and therefore declined to make any a priori rulings that pleadings may be sealed; rather the ALJ directed the parties to first negotiate the issue and, if unsuccessful, file a motion to seal pleadings, motions or evidence in the same manner as in a U.S. District Court. The ALJ noted that there is a distinction between confidentiality concerns and the invocation of privileges, and directed that if a privilege is claimed, privilege logs should be prepared. Wallace v.CH2M Hill Group, Inc. , 2004-SWD-3 (ALJ Dec. 6, 2004) ("Order on Respondent's Application for Protective Order").

[Nuclear & Environmental Whistleblower Digest VII A 5]
DISCOVERY; DEPOSITION OF HIGH RANKING GOVERNMENT OFFICALS

In Kaufman v. U.S. Environmental Protection Agency , 2002-CAA-22 (ALJ Oct. 17, 2002), the ALJ granted Respondent's motion for a protective order on the ground that the named deponents were high ranking government officials. The ALJ found that when named deponents are high ranking government officials a heightened showing is required "that the individually named deponents actually have personal information regarding discoverable matters and a deposition is the only way such information can be obtained." Slip op at 2 (citations omitted) (emphasis as in original). The ALJ found that Complainant had not shown that the officials actually had personal knowledge of the subject matter of the complaint, and that "[i]f Complainant wishes to question these individuals, the submission of interrogatories ... is the appropriate manner in which to initially proceed to determine whether these individuals have any knowledge relevant to the alleged whistleblower retaliation set form the Complaints." Id .

See also Kaufman v. U.S. Environmental Protection Agency , 2002 CAA 22 (ALJ Jan. 31, 2003) (granting protective order for two high ranking officials based on Complainant's failure to establish that the named deponents had personal relevant information); Kaufman v. U.S. Environmental Protection Agency , 2002 CAA 22 (ALJ Apr. 2, 2003) (vacating the protective order in regard to one of the named deponents where Complainant presented proof that she possessed personal knowledge relevant to the allegations stated in the complaint; ruling that where the official no longer holds a high ranking position, the heightened scrutiny of deposition requests was not present because that protection is based on high ranking officials' greater duties and time constraints); Kaufman v. U.S. Environmental Protection Agency , 2002 CAA 22 (ALJ Aug. 5, 2003) (denying motion to compel discovery regarding the aforementioned official on the ground that the individual was no longer in Respondent's employ and therefore it longer has any control over that individual); Kaufman v. U.S. Environmental Protection Agency , 2002-CAA-22 (ALJ Aug. 8, 2003) (affirming earlier protective order as to other high ranking official).

[Nuclear & Environmental Whistleblower Digest VII A 5]
DISCOVERY; STATES SECRETS PRIVILEGE

In Jackson v. Northrop Grumman Corp. , 2002-CAA-15 (ALJ June 24, 2002), Complainant sought discovery, inter alia , on production at Respondent's facility, and waste that production generated. Respondent sought a protective order on the ground that the parties had not entered into a confidentiality agreement. Respondent's facility was engaged in the production of munitions.

The ALJ noted authority to the effect that materials containing information concerning national defense or military secrets is protected by the states secret privilege, but also noted that the discovery sought was relevant to Complainant's "good faith" belief that Respondent was violating environmental laws. The ALJ concluded that the information was not critical to the Complainant's case, and granted the protective order in part "so that information regarding the materials used in production and the method of production must be kept confidential between the parties."

[Nuclear & Environmental Whistleblower Digest VII A 5]
RECUSAL; ALLEGATION OF PARTICIPATION IN CONSPIRACY, ANIMUS, PERSONAL AND PROFESSIONAL RELATIONSHIP TO COMPLAINANT

In Greene v. U.S. Environmental Protection Agency , 2002 SWD 1 (ALJ June 20, 2002),the presiding ALJ had disqualified Complainant's counsel based on a finding of misconduct. After being instructed by the Chief ALJ on the regulatory process for filing an appeal of an order of disqualification, see In the Matter of Slavin , 2002 SWD 1 (ALJ June 24, 2002), counsel filed an appeal with the Chief ALJ in which he requested that the Chief ALJ recuse himself from consideration of the appeal. The Chief ALJ found that the motion for recusal was improperly pleaded, as it did not include an affidavit setting forth the alleged grounds for disqualification as required by 29 C.F.R. § 18.31(b). See In the Matter of Slavin , 2002 SWD 1 (ALJ July 2, 2002). Counsel, however, was given leave to renew the motion in proper form. The Chief ALJ denied a motion for stay of the Complainant's case on the merits because 29 C.F.R. § 18.36(b) prohibits a delay or suspension of the case in chief during the appeal of a disqualification order.

Counsel thereafter renewed the motion to recuse, and purportedly filed it also on behalf of Complainant (Complainant, however, evidently did not authorize counsel's brief accompanying the motion). The motion was based, inter alia , on allegations that the Chief ALJ was part of a conspiracy that counsel had theorized had been formed to select a presiding judge who was pre disposed to rule against Complainant, that the Chief ALJ held animus against counsel based on prior interactions (including the Chief ALJ's referral of counsel's conduct in other cases to the Board of Professional Responsibility in the state in which counsel held his law license), and in a supporting affidavit filed by the former Chief ALJ of the DOL that the current Chief ALJ should be disqualified because of his personal and professional relationship with the former Chief ALJ and his wife who was the Complainant in the underlying matter. See In the Matter of Slavin , 2002 SWD 1 (ALJ July 26, 2002). The Chief ALJ found that the conspiracy theory was not grounded in any fact and therefore did not merit consideration as a ground for recusal. He found that his past criticism of counsel was based on counsel's conduct in proceedings before OALJ, and that "[f]acts learned by a judge in his or her judicial capacity . . . cannot form the basis for disqualification." Id. (Citations omitted).

The Chief ALJ, however, did find that his personal and professional relationship with Complainant was a disqualifying factor, and that in fact, both Associate Chief ALJs also had a similar disqualifying relationship, thereby rendering it impossible to follow the regulatory procedure for consideration of an appeal by the Chief ALJ of an ALJ's disqualification of counsel. Id. Based on the precedent of Holub v. H. Nash Babcock & King, Inc. , 1993 ERA 25 (Sec'y Feb. 6, 1995), the Chief ALJ recommended to the Secretary of Labor that the ARB be substituted as the entity for appeal in view of the unusual circumstances. Alternatively, the Chief ALJ noted that the Secretary could invoke the "rule of necessity" to instruct the Chief ALJ to entertain the appeal. Id. The Secretary adopted the Chief ALJ's recommendation to refer the matter to the ARB, In the Matter of Slavin , 2002 SWD 1 (Sec'y Aug. 19, 2002).

[Nuclear and Environmental Whistleblower Digest VII A 5]
SEALING OF RECORD; TAX RECORDS

In Doyle v. Hydro Nuclear Services , ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB ay 17, 2000), a decision focusing the calculation of damages, the ARB, although not indicating whether it was appropriate to do so, noted that the ALJ had placed Complainant's tax records in a sealed portion of the record.

[Nuclear & Environmental Digest VII A 5]
PROTECTIVE ORDER; LIMITS ON USE OF VIDEOTAPED DEPOSITION; INTERESTS OF JUSTICE STANDARD

In Johnson v. Oak Ridge Operations Office , ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30, 1999), a retired manager requested that the ARB issue a protective order continuing the protection afforded by an ALJ order limiting the use of the retired manger's 1995 videotape deposition. The ARB noted that ALJ's protective order expired by its terms upon the ARB's assumption of jurisdiction, and that it was predicated on an agreement between counsel for the retired manager and Complainants, so that the videotaping could proceed although proper notice had not been given.

The ARB declined to issue a new protective order, finding that the retired manager had not shown that "issuance of such an order is required by justice under 29 C.F.R. §18.15(a), particularly since he does not oppose dissemination of the transcribed version of the identical deposition and is not subject to further burden or embarrassment because the videotape deposition has already been taken."

[Nuclear & Environmental Digest VII A 5]
PROTECTIVE ORDER; DEPONENT PHYSICALLY ILL

In Graf v. Wackenhut Services LLC , 1998-ERA-37 (ALJ Mar. 16, 1999), the ALJ issued a protective order pursuant to 29 C.F.R. § 18.15(a) to excuse an employee of Respondent from being deposed, where Respondent produced a letter from the deponent's physician opining that based on the employee's current medical conditions, it is not in his best medical interest to be deposed.

[Nuclear and Environmental Digest VII A 5]
PROTECTIVE ORDER; RELATIONSHIP TO FOIA

In Rimar v. U.S. Environmental Protection Agency , 1998-SDW-2 (ALJ Feb. 16, 1998), Complainant sought reconsideration of a protective order that imposed restrictions on Complainant's use of certain material supplied in response to discovery requests, and required Complainant's return of some materials at the conclusion of the litigation. Complainant's motion was based on a number of grounds.

The ALJ found that Complainant had misinterpreted the impact of the protective order: it only required that Complainant maintain, from the date of the protective order, the confidentiality of documents he obtained in response to certain discovery demands: it did not prohibit disclosures that might have occurred before the order was issued or require Complainant to maintain the confidentiality of identical documents that have been or may be received through other means, such as litigation under the Privacy Act or FOIA

Complainant argued that he had a "clear-cut" Privacy Act and FOIA entitlement to the materials within the scope of the protective order. The ALJ's order contains a discussion of the difference between information gathered in response to discovery and information obtained through the Privacy Act and FOIA. The ALJ observed that Complainant was granted access through discovery to certain categories of information because it was deemed relevant to the issues in litigation, even though it appeared that at least some of that information would not be available under either FOIA or the Privacy Act (despite Complainant's assertions to the contrary). Once the litigation ended, the need for the information vanished. The ALJ noted that Privacy Act and FOIA disputes were beyond the jurisdiction of an ALJ to decide. Finally, the ALJ rejected Complainant's argument that public policy required reconsideration of the protective order. The ALJ agreed that "in circumstances where materials obtained during the discovery process demonstrate persecution of whistleblowers or other illegal conduct, public policy' would probably preclude continuation of a protective order prohibiting disclosure of such materials." However, his careful review of the materials lead to the conclusion that such circumstances did not exist in the instant case.

[Nuclear and Environmental Digest VII A 5]
PROTECTIVE ORDER; DISCIPLINARY RECORDS OF OTHER EMPLOYEES; COMPLAINANT'S PRACTICE OF POSTING DEPOSITIONS ON THE INTERNET

In Graf v. Wackenhut Services LLC , 1998-ERA-37 (ALJ Feb. 1, 1999), Complainant sought an order compelling Respondent to answer a request for production of documents regarding disciplinary actions taken against any employees for violation of information release regulations. Complainant agreed in the motion to enter into a protective order to assure the privacy interests of the subject employees. Respondent opposed the motion based on its employees general right and expectation of privacy in their employment matters, including disciplinary actions.

The ALJ found that the documents sought were relevant to the subject matter of the litigation, outweighed the employees' right to privacy, and were therefore discoverable (the ALJ's order includes a concise discussion of scope of discovery in discrimination cases). Nonetheless, the ALJ held that a protective measure was appropriate because the information sought was sensitive and the kind that the employees would expect to be held in confidence. Therefore the ALJ ordered the parties to enter into a confidentiality agreement, and directed that the disclosure be limited to Complainant's counsel and experts retained in the case, to the extent necessary for trial preparation, and that the files were to be kept confidential. The ALJ directed that "Complainant is to be prohibited from using these files for any purpose other than this action and copies of any files produced are to be maintained in counsel's custody."

Respondent also sought a protective order requiring that Complainant keep confidential the names and other identifying information of Respondent's employees that Complainant seeks to depose. Respondent sought such an order based on the assertion that Complainant had "plastered this case on the Internet, including loading the complete deposition testimony of different Wackenhut employees." Respondent further asserted that the sensitive nature of the information contained in the depositions, such as disciplinary actions taken against named employees, should be kept confidential.

The ALJ noted that the Secretary of Labor has held that litigants have a general First Amendment freedom to disseminate freely information gained through discovery, absent a valid court order. The ALJ also noted, however, that the OALJ rules of practice provide an opportunity for a party ordered to produce confidential documents to move for a protective order. See 29 C.F.R. § 18.15. Under the circumstances, the ALJ found that a protective order should be issued to shield employees of Respondent who have been subject to disciplinary actions from further embarrassment.

In a subsequent order, the ALJ prescribed the conditions and precautions for the protective order because the parties were unable to agree on the terms of such an order. Graf v. Wackenhut Services LLC , 1998-ERA-37 (ALJ Feb. 18, 1999). Among other conditions, the ALJ ordered that confidential documents be reviewed, received, and held confidential by counsel for Complainant and used only for purposes of the instant litigation. Complainant's counsel was to maintain a list of all persons to whom a disclosure was made and copies of confidentiality agreements signed by them ( e.g. , Complainant, co-counsel, support staff, party experts).

[Nuclear & Environmental Digest VII A 5]
PROTECTIVE ORDER

In Rimar v. Environmental Protection Agency ,1998-SDW-2 (ALJ Oct. 14, 1998), the ALJ granted Respondent's motion for a protective order, setting conditions on certain materials responsive to certain interrogatories and document production requests made by Complainant. The ALJ ordered that the information and/or documents must be kept confidential; may be used on in connection with the instant hearing; limited in access to Complainant's counsel, Complainant himself, and Complainant's expert witnesses (all of whom are responsible for ensuring no further release); not discussed to any person outside of the current proceedings; if introduced at the hearing, shall be placed under seal by the ALJ; returned to Respondent at the conclusion of this litigation (including all extracts and information compiled therefrom). The ALJ ordered that the protective order shall remain in full force and effect until modified, superseded or terminated by order of the ALJ.

[N/E Digest VII A 5]
DISCOVERY; SCOPE; PROTECTIVE ORDER

In Paine v. Saybolt, Inc. , 97-CAA-4 (ALJ Mar. 21, 1997)(prehearing order), the ALJ concluded based on a review various legal authority, including the ARB decisions in Timmons v. Mattingly Testing Services , 95-ERA-40 (ARB June 21, 1996) and Seater v. Southern California Edison Co. , 95-ERA-13 (ARB Sept. 27, 1996), and the DOL regulations at 29 C.F.R. § 18.14(a) and 29 C.F.R. § 24.5(e)(1), that an ALJ should apply a broad scope of relevance, and that "[i]t logically follows that the scope of discovery is even broader." Slip op. at 2 (citation omitted).

The ALJ noted that Respondent was not relieved of discovery responsibilities merely because Complainant potentially could obtain the documents through FOIA, citing Young v. Philadelphia Elec. Co. , 87-ERA-36 (ALJ Sept. 15, 1987)(citing Pleasant Hill Bank v. U.S. , 58 F.R.D. 97 (1973) ("Material which is exempt under FOIA is not necessarily privileged for the purposes of discovery.")

VII A 5 Motion for protective order

In Scott v. Alyeska Pipeline Service Co., 92-TSC-2 (ALJ Jan. 4, 1992) (prehearing order, clerical errors corrected by order dated Feb. 19, 1992), the ALJ denied Respondent's motion for a protective order "requiring the complainant not to disclose or make available to any person for purposes unconnected with this litigation any documents or other information produced by respondent in response to complainant's discovery in this case." (quote is of ALJ's characterization of the motion).

The ALJ noted that Respondent had failed to carry its burden of showing how the discovery "is in any way inappropriate, impermissible, or likely to cause annoyance, embarrassment, oppression or undue burden or expense." See Fed. R. Civ. P. 26(c) and 29 C.F.R. § 18.15.

The ALJ noted that Respondent's primary reason for seeking the protective order, to ensure that discovery is limited to informa- tion necessary to disposition of the matter at the ALJ proceeding, had not been shown to be unattainable by the usual limitations on discovery: ". . . that it is limited to material designed to lead to discovery of admissible evidence, and that privileged documents, trade secrets and confidential commercial information are not generally discoverable."

VII A 5 Standard for invocation of self-critical analysis privilege; Limit of protective order when information obtained outside discovery

In Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995), the Respondent contracted with its former head of security to perform an independent investigation of several of the Complainant's quality concerns. The contractor died after he submitted his reports. The Respondent resisted the Complainant's discovery requests for the reports, citing the privilege afforded to self critical analysis. The ALJ ordered the Respondent to produce the reports, but also issued a protective order requiring that the Complainant and his counsel not disclose any information in the reports except for purposes of the hearing. The Complainant asked the ALJ to reconsider the protective order because it would preclude him from providing information to the NRC; the Respondent moved to modify the protective order to permit the Complainant to share the information contained in the reports with the NRC - but not the reports themselves. The ALJ subsequently issued a recommended decision without ruling on the motion to modify; on the same day, the Complainant obtained copies of the reports from the contractor's widow. The Respondent filed motions appealing the ALJ's order compelling the production of the reports, and a motion to modify the protective order. The Complainant filed a response requesting withdrawal of the protective order, agreeing to redact the names of witnesses, and moving to admit the reports into the record.

[ Editor's note: An issue relating to the ALJ's continuing jurisdiction over a protective order is casenoted separately in this section]

Standard for invocation of self critical analysis privilege

The Secretary affirmed the ALJ's order to compel, noting that the self-critical analysis privilege applies only when "'the public interest in maintaining confidentiality outweighs the requesting party's need for the information.'" Slip op. at 7, quoting Respondent's appeal from ALJ's order compelling production at 10. The Secretary found that "the overwhelming public interest in protecting whistleblowers who act to promote nuclear power safety outweighs [the Respondent's] interest in keeping the ... reports confidential." Slip op. at 7-8. The Secretary also noted that the Respondent's stake in the confidentiality of the reports had diminished during the course of the appeal, the Respondent having offered to produce the reports to an investigator charged with determining compliance with the ERA and having made an additional investigation and submitted the report to the NRC.

Limit of protective order when information obtained outside discovery

When litigants have obtained information through discovery, they are free to disseminate the information in the absence of a valid court order. Protective orders, to comport with the First Amendment, may not restrict information obtained outside of discovery. In the case sub judice , the Complainant obtained the reports voluntarily from the contractor's widow rather than through discovery. Thus, the Secretary lifted the protective order.

The Secretary also stated that "[t]o protect individual's privacy, [the Respondent] shall redact the names and identifying information of employees from the reports prior to disseminating them."

[ Editor's note: It is unclear why permitting the Respondent to redact names and other identifying information prior to dissemination of the reports assists in protecting the privacy of the individuals involved when the Complainant already has obtained the reports from another source, and the Secretary just ruled that there was no authority to issue a protective order in regard to information obtained outside discovery. The Secretary's decision perhaps implies that Complainant had voluntarily agreed to redact names and identities before he disseminated the reports.]

The Secretary noted that the reports filed with him by the Complainant are subject to FOIA, but decided to treat the Respondent's request for a protective order as a designation of the reports as confidential commercial information pursuant to 29 C.F.R. § 70.26. The Secretary also received the reports into the record for purposes of determining whether there are genuine material issues of fact that would preclude summary judgment, but left it to the ALJ to determine on remand whether the reports would be admitted into evidence.

VII A 5 ALJ's continuing jurisdiction over protective order

Upon transmission of a recommended decision, an ALJ loses jurisdiction to modify the recommended decision itself. See, e.g., Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Mar. 16, 1995), slip op. at 3. Nonetheless, the ALJ retains jurisdiction in an ERA case to modify a protective order even after transmittal of his or her recommended decision to the Secretary because the modification would not alter the terms of the ALJ's recommended decision pending the Secretary's review. The ALJ's "jurisdiction over a protective order continues even after the Secretary has issued a final decision, for so long as the protective order is in effect." Holden v. Gulf States Utilities, 92- ERA-44 (Sec'y Apr. 14, 1995), slip op. at 6-7.

In Holden, the Secretary ruled on the Respondent's motion to modify the ALJ's protective order rather than to remand this issue to the ALJ, nothing that 5 U.S.C. § 557(b) provides that upon "review of the initial decisions, the agency has all the powers which it would have in making the initial decision. . . ." Slip op. at 7.

The Secretary also indicated that the ALJ or the Secretary has wide latitude to modify or lift a protective order. Slip op. at 8 n.5.

VII A 6 Extent of discovery required to be permitted before ruling on a motion attacking jurisdiction

In Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995), a primary issue was whether the Complainant was an employee within the meaning of various environmental whistleblower provisions (CAA, TSCA, CERCLA, SDWA, SWDA, and FWPCA).

The ALJ did not commit reversible error in declining to order discovery that Complainant asserted related to jurisdictional issues prior to issuing his recommended order ruling on the jurisdictional underpinning of the case where the facts necessary to make a determination on the issue were either contained in a contract or were within the personal knowledge of the Complainant (who failed to use affidavits to support his position on the issue of jurisdiction).

Although the Secretary recognized that under certain circumstances it is necessary and proper to allow a party to engage in discovery of facts related to jurisdictional issues prior to ruling on jurisdiction, he noted that the Complainant's counsel's interrogatories were largely relevant to other issues, not relevant to the case at all, and related to information already within the Complainant's control. The Secretary also noted that Complainant made no attempt to justify the asserted need for answers to the interrogatories with reference to the specific information he sought to gain.

[Nuclear and Environmental Digest VII A 6]
DISCOVERY; DEPOSITION OF COMPENSATION COMMITTEE WHICH WAS TECHNICALLY A SEPARATE ENTITY FROM THE DEFENDANT

[Nuclear and Environmental Whistleblower Digest VII A 6]
DISCOVERY; INFORMATION ABOUT CRIMINAL RECORD

In Dann v. Bechtel SAIC Co., LLC , 2005-SDW-4, 5 and 6 (ALJ May 13, 2005), the Respondent sought discovery about misdemeanor convictions or prior criminal charges or arrests of the Complainants, and filed a motion seeking enforcement of the discovery request by the ALJ. The ALJ found that the Complainants correctly pointed out that under the rules of evidence it is not ordinarily permissible to use felony convictions for impeachment purposes unless the convictions occurred within the past 10 years. The ALJ ruled, however, that

[T]his does not mean that a respondent is barred from obtaining information in discovery about misdemeanor convictions or prior criminal charges or arrests. Misdemeanor convictions concerning false statements or acts of dishonesty are admissible if they occurred within the last 10 years and even information about prior arrests or criminal charges might reasonably be expected to lead to the discovery of admissible evidence. Accordingly, the Complainants will be required to provide Bechtel SAIC the requested information about misdemeanors that involved false statements or acts of dishonesty and information about any prior arrests or criminal charges. However, the Complainants need provide information about such incidents only if they occurred within the last 10 years.

[Nuclear & Environmental Whistleblower Digest VII A 6]
DISCOVERY; INFORMATON ABOUT AGENCY'S RECORDS MANAGEMENT AND ELECTRONIC RECORD KEEPING

In Kaufman v. U.S. Environmental Protection Agency , 2002 CAA 22 (ALJ Aug. 5, 2003), Complainant sought to depose witnesses concerning EPA's "response to document production requests as they relate to electronic records made by Complainant in the course of pursuing his whistleblower complaint." Slip op. at 1, quoting Complainant's Deposition Notice and Respondent's Motion. Respondent objected, arguing that Complainant was not seeking information relevant to his whistleblowing retaliation claims but EPA's procedures for complying with Federal records management requirements and its electronic record keeping capabilities. The ALJ denied the objection, holding that the information sought "could reasonably lead to the discovery of evidence that would be admissible at the hearing."

[Nuclear and Environmental Whistleblower Digest VII A 6]
DISCOVERY; AUDIOVISUAL DEPOSITIONS

In Rosen v. Fluor Hanford, Inc. , 2005-ERA-15 and 2005-TSC-1 (ALJ July 26, 2005), the ALJ held that the Complainant's counsel could record depositions by audiovisual media following the procedures set out in FRCP 30(b)(2) and (4), and the Local Rules of the applicable federal district court. The ALJ ordered that the recorded media shall be retained in the custody of the attorney for the party recording the deposition, and that the recordings shall be held in confidence.

[Nuclear & Environmental Digest VII A 6]
DISCOVERY; DOL DOES NOT HAVE JURISDICTION TO ORDER OTHER AGENCIES TO COMPLY WITH FOIA REQUESTS

In Williams v. Lockheed Martin Energy Systems, Inc. , ARB No. 98-059, ALJ No. 1995-CAA-10 (ARB Jan. 31, 2001), the ALJ denied Complainant's motion to order the Department of Energy to comply with his FOIA request. The ARB held that this was a correct ruling by the ALJ as "the Department of Labor does not have jurisdiction to rule on DOE FOIA matters."

[Nuclear and Environmental Digest VII.A.6.]
DISCOVERY; PROTECTION OF PERSONNEL RECORDS

In Khandelwal v. Southern California Edison , ARB No. 98-159, ALJ Nos. 1997-ERA-6 (ARB Nov. 30, 2000), the ARB commented that "[w]hen an employer's personnel records are sought in discovery, the confidentiality of information that otherwise qualifies as discoverable may be protected through restrictions on the use of that information. See Lyoch v. Anheuser-Busch Cos., 164 F.R.D. 62, 68-69 (E.D. Mo. 1995). Such restrictions may be embodied in a mutual agreement between the parties or a protective order issued under Section 18.15. See Lyoch , 164 F.R.D. at 68-69; 29 C.F.R. §18.15."

ADMISSIONS; FAILURE TO HONOR REQUEST FOR DATA NOT AN ADMISSION WHERE OPPOSING PARTY DID NOT REQUEST ADMISSION OR SEEK ORDER TO COMPEL
[N/E Digest VII A 6]

In Seater v. Southern California Edison Co ., 95-ERA-13 (ARB Sept. 27, 1996), Complainant contended that Respondent's refusal to provide data on the number of employees who had engaged in whistleblowing activity that were still employed by Respondent constituted an admission. The Board held, however, that since Complainant did not pursue this data by means of a request for admission nor seek an order to compel discovery, there was no admission.

DISCOVERY; MOTION TO COMPEL, SUFFICIENT SPECIFICITY
[N/E Digest VII A 6]

In Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (Sec'y Dec. 13, 1995)(order), the Secretary indicated that the it was reasonable for the ALJ to require additional specificity in a motion to compel discovery.

VII a 6 Complainant nonsuited; dilatory in retaining counsel

In Billings v. Tennessee Valley Authority, 86-ERA- 38 (Sec'y June 28, 1990), the Complainant was found to be dilatory in retaining counsel where he had filed his complaint in June 1986, some two months prior to the scheduled hearing, he did not attempt to retain counsel until he heard about the hearing, and the record contained no appearance of counsel for the Complainant until after the ALJ had ruled against him in October 1986. The ALJ considered a motion for reconsideration and issued a second Decision and Order denying the motion for reconsideration. Accordingly, the Complainant had ample opportunity to afford himself of counsel before the ALJ and the Secretary of Labor.

The Secretary noted the Complainant's lack of diligence in support of her finding that he was not prejudiced by a lack of formal notice of the hearing date, non-appearance at the hearing, and the lack of legal representation. The Secretary also noted that the ALJ had not used the abbreviated hearing as a basis for the decision on the motion for summary judgment.

[Editor's note: The Secretary held in Tankersly v. Triple Crown Services, Inc., 92-STA-8 (Sec'y Feb. 18, 1993), that an ALJ has no jurisdiction to consider a motion for reconsideration after issuance of the recommended decision and order. In the instant case, however, she used the ALJ consideration of the motion for reconsideration to support a finding of lack of prejudice.]

VII A 6 Enforcement of ALJ discovery orders by federal courts

In In re Willy, 831 F.2d 545 (5th Cir. 1987), the Complainant sought review under the All Writs Act in the Court of Appeals to resolve the question of whether certain materials were protected from an ALJ's order compelling discovery where the Respondent claimed that the documents were subject to the attorney-client privilege. The Complainant sought relief in the Court of Appeals because he had determined that no statute conferred jurisdiction on a district court to enforce the administrative discovery order of an ALJ of the sort presented in this case. The Court of Appeals assumed, but did not decide, that 29 C.F.R. § 18.29(b) was not applicable.

The court held that

Orders denying or directing discovery are interlocutory and so not appealable except as part of the final decision disposing of the case on the merits. [The Complainant's] asserted need for the documents that are the subject of the discovery dispute does not constitute irreparable injury of the kind required to interrupt an administrative proceeding. [The Respondent] is not a petitioner, and, while it urges us to grant [the Complainant's] petition as a matter of justice and efficiency in litigation, it has neither asserted nor shown that it faces a drastic sanction such as a judgment of default. It therefore has not shown that its claim of privilege requires immediate, interlocutory review.

Willy , 831 F.2d at 549 (footnotes omitted).

[Editor's note: The ALJ had declined to find the Respondent in default, but had directed the Complainant to seek enforcement of the discovery order in district court. Before the discovery matter proceeded much further, the ALJ issued a recommended order of dismissal based on Brown & Root . The Secretary later respectfully declined to follow Brown & Root and remanded the case.

On remand, the parties apparently agreed to a sealing of the record (not including the recommended decision or the Secretary's decision, as a compromise. I don't have a copy of the Order regarding In Camera Procedures issued by the ALJ.]

[Nuclear and Environmental Digest VII B 1]
SUBPOENAS; ARB DECLINES TO REVISIT CHILDERS DECISION

See Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc. , ARB No. 08-127, ALJ No. 2007-LCA-26 (ARB Jan. 31, 2011), a case arising under the H-1B nonimmigrant alien labor certification regulations, in which the ARB declined the Wage and Hour Division Administrator's request that the ARB reexamine and reject Childers v. Carolina Power & Light , ARB No. 98-077, ALJ No. 1997-ERA-032 (ARB Dec. 29, 2000).

[Nuclear & Environmental Digest VII B 1]
SUBPOENAS; AUTHORITY TO ISSUE; EXERCISE OF DISCRETION TO ISSUE

In Childers v. Carolina Power & Light. Co. , ARB No. 98-077, ALJ No. 1997-ERA-32 (ARB Dec. 29, 2000), the ARB ruled that ALJs have inherent power to issue subpoenas when a statute requires a formal trial-like proceeding. In so ruling, it was necessary for the ARB to revisit the decision of the Secretary of Labor in Malpass v. General Electric Co. , 1985-ERA-38 & 39 (Sec'y Mar. 1, 1994), which stated in dictum that ALJs lack subpoena power under the whistleblower provision of the ERA, 42 U.S.C. §5851, because §5851 does not delegate subpoena power by express terms. The ARB carefully reviewed statutory and decisional authority and made the following rulings:

1. Stare decisis does not prevent withdrawal of the Malpass dictum.

2. Administrative subpoenas are essential tools widely used by agencies responsible for assuring compliance with health and safety legislation

3. Although the Malpass dictum and other commentators have assumed that administrative subpoena power is delegable only by express statutory terms, closer review of the "express authorization" rule reveals that it is not relevant to the question of whether agencies are authorized to issue administrative subpoenas

4. Statutory mandates for agencies to provide formal trial-type hearings e.g. , the ERA whistleblower provision necessarily encompass subpoena authority (citing authority to effect that it would be incongruous to grant an agency authority to adjudicate and make findings of fact, without also providing the authority to assure the soundness of the fact finding).

5. An agency given the power to adjudicate is entitled to use subpoenas simply by virtue of the agency's discretion to choose procedural mechanisms. The ARB cited the examples of warrants a far more intrusive procedural mechanism than subpoenas as not being subject to an express authorization requirement; thus, if an agency can issue a warrant when helpful, it must follow that subpoenas are a procedural device available to an agency when helpful.

The ARB noted that the ERA does provide express subpoena authority to the NRC in the conduct of its hearings, which can include whistleblower proceedings, but concluded that this could not be construed as evidence of purposeful exclusion of that authority to DOL given the 24-year interval between enactment of the two provisions, and the extensiveness and complexity of the ERA, to which the section 5851 provision plays only a supporting role.

6. Although Malpass suggested that the fact that the ALJ would not be able to punish noncompliance with subpoenas by contempt sanctions bears on the question of subpoena power ab initio , on closer review no connection exists between the question whether an agency has subpoena power and the fact that agencies lack power to impose civil or criminal contempt sanctions for noncompliance with agency subpoenas. Even agencies that have express subpoena authority lack power to impose contempt sanctions.

7. An unpublished Fourth Circuit decision relying on Malpass contains a ruling that an ALJ lacked subpoena authority under the whistleblower provision of the FWPCA, Immanuel v. United States Dep't Labor , 139 F.3d 889 (unpublished table decision) (4th Cir. 1998), 1998 WL 129932. The Immanuel court reasoned that administrative subpoenas must be authorized by express terms in the enabling legislation because §§555(d) and 556(c)(2) of the APA state that agencies may issue subpoenas in adjudications when "authorized by law." 5 U.S.C.A. §555(d) (agency subpoenas "authorized by law shall be issued to a party on request"); 5 U.S.C.A. §556(c)(2) (providing that, subject to published rules of the agency and within its powers, employees presiding at administrative hearings may issue subpoenas "authorized by law"). Thus, the court apparently assumed that the term "authorized by law" means "authorized by express statutory terms." The ARB, however, held that "Authorized by law" is clearly not the same as "authorized by explicit statutory text."

Although the ARB concluded that the ALJ erred in ruling that he did not have subpoena power, under the circumstances in Childers , a remand was unnecessary because nothing in the administrative record indicated that the witnesses whom Complainant intended to subpoena could have materially aided him in establishing that Respondent's decision to fire him was influenced by protected activity.

One member of the Board issued a separate opinion, concurring in part and dissenting in part. The member concurred with the ruling that the ERA implicitly empowers the ALJ with subpoena authority to compel the attendance of witnesses at hearing, but believed that, under Mathews v. Eldridge , 424 U.S. 319 (1976), a determination must be made as to whether due process compels issuance of the requested subpoenas in a particular case before an ALJ. The majority expressly disavowed the separate opinion to the extent that it diverged from the majority opinion.

[Nuclear and Environmental Whistleblower Digest VII B 1]
SUBPOENAS; REQUEST FOR SUBPOENAS WHILE CASE PENDING BEFORE THE ARB

In Reid v. Constellation Energy Group, Inc. , ARB No. 04-107, ALJ No. 2004-ERA-8 (ARB Oct. 13, 2004), Halpern v. XL Capital, Ltd. , ARB No. 04-120, ALJ No. 2004-SOX-54 (ARB Oct. 13, 2004) and Cummings v. USA Truck, Inc. , ARB No. 04-043, ALJ No. 2003-STA-47 (ARB Sept. 15, 2004), the ARB denied the requests of pro se complainants to obtain subpoenas from the ARB. The Board observed in each case that the Board acts in an appellate capacity and its decision is based only on evidence considered by the ALJ in the initial hearing.

[N/E Digest VII B 1]
SUBPOENA POWER; DOL NOT AUTHORIZED TO ISSUE SUBPOENAS UNDER FWPCA

In Immanuel v. Wyoming Concrete Industries, Inc. , 95-WPC-3 (ARB ay 28, 1997), the Board rejected Complainant's request for a remand instructing the ALJ to issue subpoenas for relevant witnesses and evidence. The Board stated that "the WPCA does not authorize the issuance of subpoenas in whistleblower proceedings. [Complainant's] constitutional argument for this request cannot be considered because it is not within the Board's jurisdiction. Secretary's Order 2-96, § 4 (delegation of authority and assignment of responsibility), 61 Fed. Reg. 19978-79. See n.1."

See also Malpass v. General Electric Co. , 85-ERA-38 and 38 (Sec'y Mar. 1, 1994).

[Nuclear & Environmental Digest VII B 1]
SUBPOENAS; MATTER INVOLVING CLAIM AGAINST THE UNITED STATES

In Beliveau v. Naval Undersea Warfare Center , 1997-SDW-6, Respondent filed a motion requesting the Secretary of Labor to apply for the issuance of subpoenas pursuant to 5 U.S.C. § 304. According to Respondent's motion, section 304 "...grants authority to federal departments, upon the request of the department head, to petition a judge or clerk of court of a United States District Court to issuance subpoenas in matters that are pending before the agency, if the matter involves a claim against the United States." The motion notes case law to the effect that issuance and enforcement of a section 304 subpoena is proper where the inquiry is within the authority of the department, the demand is not too indefinite, and the information requesting is reasonably relevant. The motion was still pending at the time of the writing of this case note.

[Nuclear & Environmental Digest VII B 1]
SUBPOENAS; ATTEMPT BY RESPONDENT TO OBTAIN FROM EPA

In Schooley v. Chugach North Technical Services , 1998-TSC-5, Respondent requested that the presiding DOL administrative law judge issue two subpoenas for third party witnesses. Respondent noted in its request that it was concurrently seeking to have the Administrator of the Environmental Protection Agency issue subpoenas under the authority of 15 U.S.C. § 2610(c), arguing that this section of the TSCA provides express authority for EPA to issue subpoenas to carry out the whistleblower section, and that nothing in the TSCA precludes the EPA Administrator from doing so, even though the witnesses would appear in a hearing before the DOL.

The ALJ declined to issue the subpoenas, and the scheduled hearing was conducted before EPA responded to Respondent's subpoena request. The two third party witnesses did not appear to testify at the hearing.

[N/E Digest VII B 1]
COMPELLING ATTENDANCE OF WITNESSES; SUBPOENA POWER

In Immanuel v. USDOL , No. 97-1987 (4th Cir. 1998)(per curiam) (unpublished) (case below ARB No. 96-022, ALJ No. 95-WPC-3), the Fourth Circuit held that the ALJ abused his discretion when he denied Complainant's request to compel the attendance of witnesses within the control of Respondent (Complainant's former employer).

The court agreed that the ALJ did not have the authority to issue subpoenas to compel the appearance of witnesses under the FWPCA, 33 U.S.C. § 1367(a). See 33 U.S.C. § 1369(a) (authorization of subpoenas under FWPCA excludes whistleblower provision); see also 5 U.S.C. § 555(d); 5 U.S.C. § 556(c)(2). Nonetheless, the court found that 29 C.F.R. § 18.29(a) provides clear authority for an ALJ to compel the appearance of all witnesses within the control of Respondent.

[N/E Digest VII B 1]
SUBPOENA POWER; DOL DOES NOT HAVE SUBPOENA POWER UNDER THE SWDA OR THE FWPCA

In Oliver v. Hydro-Vac Services, Inc. , 91-SWD-1 (ARB Jan. 6, 1998), both Complainant and Respondent filed exceptions to the ALJ's refusal to issue third party subpoenas. The ARB denied the exceptions, stating that "[i]t is well established that an agency has no authority to issue subpoenas absent explicit statutory authority." Slip op. at 2 (citations omitted).

The ARB noted that an ALJ has authority to compel testimony and production of documents from witnesses in control of the parties under 29 C.F.R. § 18.29(a)(3), and by making appropriate adverse findings for failure of a party to comply. See Fed. R. Civ. Pro. 37(b)(2)(A), (B) and (C).

The ARB found that the ALJ acted within his discretion in admitting certain documents objected to by Respondent and according them appropriate weight in light of the lack of an opportunity for cross-examination. 29 C.F.R. § 24.5(e).

[N/E Digest VII B 1]
SUBPOENA; ALJ'S AUTHORITY TO ISSUE

In Nason v. Maine Yankee Atomic Power Co. , 97-ERA-37 (ALJ Nov. 12, 1997), the ALJ indicated that he would issue subpoenas in an ERA at the request of either party. The ALJ stated his opinion that the Secretary of Labor's dicta in Malpass v. General Electric Co. , 85-ERA-38 and 39 (Sec'y Mar. 1, 1994), about subpoena power failed "to take into consideration the inherent authority of an administrative law judge to issue subpoenas as is permitted by the Office of Administrative Law Judges' Rules of Practice." The ALJ stated that "...I deem it necessary for the recipient of the subpoena to determine whether or not he or she will abide by the subpoena."

VII B 1 ALJ's authority to issue subpoenas

In Hill v. Tennessee Valley Authority, 87-ERA-23 (ALJ Apr. 17, 1990), the ALJ concluded that he had the authority to issue subpoenas in an ERA whistleblower case. He concluded that "so that the Secretary may afford a constitutionally adequate hearing, Section 210 of the ERA must be construed as implicitly granting subpoena power. It follows from this conclusion and §556(c) of the APA that an administrative law judge of the Department of Labor also has subpoena power."

[Editor's note: Judge De Gregorio goes through an interesting discussion to reach this conclusion. The order is worth reading for anyone faced with this issue.]

SUBPOENAS; RECEIPT OF HEARSAY DOCUMENT WHERE ATTENDANCE OF WITNESS COULD NOT BE COMPELLED BECAUSE OF LACK OF SUBPOENA POWER
[N/E Digest VII B 1 and VII D 2]

In Macktal v. Brown & Root, Inc. , 86-ERA-23 (ALJ Nov. 25, 1996), the ALJ received a hearsay document submitted by Complainant to establish certain matters where Complainant could not compel the attendance of the declarant by subpoena. The ALJ, however, cautioned Complainant that the hearsay document, without corroborating evidence, lacked evidentiary value.

VII B 1 DOL does not have subpoena power in ERA cases

In Malpass v. General Electric Co., 85-ERA-38 and 39 (Sec'y Mar. 1, 1994), in discussing the power of the Department of Labor to impose costs and fees against a complainant in an ERA whistleblower proceeding, the Secretary stated:

It seems clear . . . that the Secretary (or an ALJ) has no power under the ERA to issue subpoenas or to punish for contempt for failure to comply with a subpoena. Under the APA, an [ALJ] presiding at a hearing only has authority to "issue subpoenas authorized by law", section 7(b), 5 U.S.C. § 556(c)(2), and there is no such authorization in the ERA.

* * *

Furthermore, I do not believe the Secretary can assume powers not delegated to him by Congress simply by incorporating provisions, such as the Federal Rules of Civil Procedure, in departmental regulations. If he could, any agency could adopt rules, for example, giving itself subpoena power, which as noted above, it can only exercise when explicitly delegated. I think the incorporation of the Federal Rules in 29 C.F.R. § 18.29 is for purposes of procedure and case management to fill in any gaps where no specific provision of the Rules of Practice is applicable.

Slip op. at 21, 22.

[Editor's note: Although the Secretary's discussion of DOL subpoena power in Malpass may be characterized as dicta, it is explicit. Prior to Malpass , a few ALJs found that the DOL does have the power to issue subpoenas in whistleblower proceedings despite the absence of explicit statutory authority.

See, for example Coupar v. Federal Prison Industries/Unicor, 92-TSC-6 and 8 (ALJ May 8, 1992) (prehearing order) (citing 29 C.F.R. § 24.5(e)(1)); Hill v. Tennessee Valley Authority, 87-ERA-23 (ALJ Apr. 17, 1990) (due process); Young v. Philadelphia Electric Co., 87-ERA-36 (ALJ Sept. 15, 1987) (prehearing order) (ERA's legislative history indicates that its proceedings were meant to operate in same fashion as the National Labor Management Act and the Federal Coal Mine Safety and Health Act; due process).

The Federal Water Pollution Control Act, 33 U.S.C. § 1369(a)(1) authorizes issuance of subpoenas to carry out the purpose of section 1367(e). Section 1367(a)-(d) constitutes the "whistleblower" provision of the Federal Water Pollution Control Act, but section 1367(e) is tied to the Administrator's issuance of effluent limitations orders or any other order under the chapter. Thus, I doubt that section 1369(a)(1) authorizes subpoenas in DOL whistleblower proceedings except, possibly, in very limited circumstances Arguably, if the complaint was based on discrimination resulting from a Secretary's order in a FWPCA whistleblower proceeding (e.g., a blacklisting complaint), a subpoena might be authorized by section 1369.]

SUBPOENA POWER OF NRC
[N/E Digest VII B 1]

When investigating whether a respondent's past treatment of whistleblowers posed a threat to public health and safety, the court in United States of America v. Construction Products Research, Inc. , 1996 U.S. App. LEXIS 202 (2d Cir. 1996) (related to 93-ERA-25), held that the NRC has subpoena power pursuant to 42 U.S.C. § 2201(c). The court rejected the respondent's argument that subpoena power for such an investigation was not within the NRC's statutory authority because, under the respondent's theory, Congress delegated to DOL the task of investigating all potential nuclear safety risks resulting from adverse employment practices.

VII B 1 Authority of ALJ to issue subpoenas

In Young v. Philadelphia Electric Co., 87-ERA-36 (ALJ Sept. 15, 1987) (memorandum and order ruling on Department of Labor's motion to quash subpoenas), the ALJ ruled that the Office of Administrative Law Judges has the authority to issue subpoenas in ERA whistleblower proceedings. In making that determination, the ALJ examined the legislative history of the ERA and concluded that the ERA whistleblower provision was meant to operate in the same fashion as similar provisions of the National Labor Management Act and the Federal Coal Mine Safety and Health Act, which both provide Secretarial authority to issue subpoenas. He also cited due process necessity for subpoena power, and 29 C.F.R. Part 18's reference to the Federal Rules of Civil Procedure for any situation not provided for or controlled by Part 18. See 29 C.F.R. § 18.1; Fed. R. Civ. P. 45.

VII B 1 DOL does not have subpoena power in ERA cases

In Bixby v. State of New Mexico, 94-TSC-1 (ALJ Apr. 14, 1994), the ALJ cited Malpass v. General Electric Co., 85-ERA-38 and 39 (Sec'y Mar. 1, 1994), in denying both parties' request for subpoenas. The ALJ stated that "[a]lthough the Secretary's holding regarding subpoena power in ERA cases is dicta, such an unequivocal enunciation of the law cannot be ignored."

VII B 1 Authority to issue subpoenas

In Coupar v. Federal Prison Industries/Unicor, 92- TSC-6 and 8 (ALJ May 8, 1992) (order granting request for subpoenas), the ALJ held that 29 C.F.R. § 24.5(e)(1) authorizes the issuance of subpoenas and does not exceed the investigatory authority granted by the various environmental and nuclear acts.

7 b 1
VII B 1 No subpoena power in TSC, CAA and SWDA cases

In Bixby v. State of New Mexico, Office of the Commissioner of Public Lands, 94-TSC-1 (ALJ Apr. 14, 1994)(prehearing order), the ALJ found that the Secretary's unequivocal dicta in Malpass v. General Electric Co., 85-ERA-38 and 39 (Sec'y ar. 1, 1994), clearly enunciated that the ERA does not authorize the Department of Labor to issue subpoenas. The ALJ found that the reasoning of Malpass was equally applicable to cases arising under the TSC, CAA and SWDA.

VII B 1 ALJ's authority to issue subpoenas

In O'Sullivan v. Northeast Nuclear Energy Co., 88- ERA-37 and 38 (ALJ Aug. 18, 1989), the ALJ concluded that subpoena power has not been authorized by Congress for a proceeding under section 5851, and as a result, an ALJ does not have the power to issue a subpoena, that protracted prehearing discovery is not contemplated by the ERA whistleblower provisions, and that the ALJ hearing with review by the Secretary provides due process.

[Editor's note: The case was settled before the Secretary. O'Sullivan v. Northeast Nuclear Energy Co., 88-ERA-37, 38, 89-ERA-34, 90-ERA-4, 33, 34, 91-ERA-51, 92-ERA-3 (Sec'y June 17, 1992).]

VII B 1 Applicability of Part 18 to proceedings before Wage and Hour Division

In Douglas v. Tennessee Valley Authority , xx-xxx-xx (ALJ Feb. 3, 1994), the Chief ALJ granted Respondent's motion to quash a subpoena that had been issued bearing the seal of the Office of Administrative Law Judges. The complaint was still under investigation by the Wage and Hour Division, and the Chief ALJ concluded that regulation under which subpoenas are issued by OALJ may only be applied in proceedings before OALJ. 29 C.F.R. §§ 18.1 and 18.24.

[ Editor's Note: The Secretary has indicated in dicta that the Department of Labor does not have subpoena power in ERA proceedings. See Malpass v. General Electric Co., 85-ERA- 38 and 39 (Sec'y Mar. 1, 1994).]

VII.B.1.a. Gag provision

In Marthin v. Tad Technical Services Corp., 94-WPC- 1, 2 and 3 (Sec'y June 8, 1994), the ALJ found that certain provisions of a settlement agreement attempted to prohibit Complainant from contacting government agencies or officials, and from participating in any proceedings against Respondents. The Secretary agreed, finding that under one provision Complainant could be prohibited, among other things, from providing information to, or assisting or cooperating with, the Department of Labor in investigations of complaints against Respondents, or involving Respondents, under the WPC or any other environmental whistleblower protection statute.

Since the parties specifically agreed that none of the terms of their agreement could be "changed, waived or added to" except by writing signed by all parties, the cases were remanded.

VII B 1 Adverse inference based on failure of witness to comply with unenforceable subpoena

In Crosby v. United States Dept. of Labor, No. 93-70834 (9th Cir. Apr. 20, 1995) (unpublished) (case below 85-TSC-2), the court found no reversible error for the ALJ's not drawing an adverse inference based on the Complainant's inability to examine certain witnesses after the district court refused to enforce a subpoena for them. The ALJ determined that their testimony would have been immaterial, and the Complainant did have an opportunity to examine the officials who actually fired him.

VII B 2 DOL may not rely on 29 C.F.R. §§ 2.20-2.25 to quash subpoenas

In Young v. Philadelphia Electric Co., 87-ERA-36 (ALJ Sept. 15, 1987) (memorandum and order ruling on Department of Labor's motion to quash subpoenas), the ALJ ruled that the Office of the Solicitor's reliance on the Department of Labor's "housekeeping" regulations found at 29 C.F.R. §§ 2.20-2.25 -- which require Department officials who are served with a subpoena to notify the Office of the Solicitor and to comply with that Office's instructions in regard to whether to disclose the requested information -- was misplaced since the purpose of those regulations did not support the Solicitor's motion to quash subpoenas issued in the case. The ALJ concluded that the regulations were premised on the theory that as a matter of internal management the head of an agency is authorized to reserve the authority to release records (i.e., it protects the lower level official from being held in contempt). They do not authorize the withholding of information from the public or limiting the availability of records to the public. Any justification for excluding government records must rest solely on the assertion that such material is privileged -- an assertion not made in the instant case.

VII B 2 "Housekeeping" regulation as ground to quash subpoena

In Emory v. United States Environmental Protection Agency, 93-SDW-4 (ALJ Dec. 3, 1993) (prehearing order), the United States Department of Justice (DOJ) moved to quash Complainant's subpoena duces tecum to a former Deputy Assistant Attorney General and former Acting Assistant Attorney General, Environmental and Natural Resources Division, DOJ. Complainant's complaint is based on alleged retaliation for documenting mishandling of criminal cases involving the enforcement of environmental laws by DOJ. DOJ maintained that Complainant had failed to request and obtain DOJ authorization for the deponent's testimony and production of documents pursuant to its regulations at 28 C.F.R. §§ 16.21-16.29. No privilege was asserted.

The ALJ noted that the regulations at issue are so-called "housekeeping" regulations issued pursuant to 5 U.S.C. § 301, which provides

The head of an Executive Department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use and preservation of its records, papers and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.

The ALJ noted the purposes of such regulations and found that they did not justify denial of the disclosure sought in the instant proceeding. In regard to the specifics of the regulations, the ALJ found that the United States was a party, and therefore a regulation requiring prior DOJ approval for disclosure by a current or former DOJ employees when the United States is not party, was not applicable. See 28 C.F.R. § 16.22. The second section proffered by DOJ as requiring prior approval referred only to "attorney[s]" whereas the first section referred to "employee[s] or former employee[s]". See 29 C.F.R. §§ 16.22(a) and 16.23(a). The ALJ found that DOJ knew how to do it when it wanted a regulation to apply to former employees, and since the deponent was a former employee, the second section did not apply.

Thus, the motion to quash was denied.

7 b 3
VII B 3 OALJ subpoenas not self- executing

In Young v. Philadelphia Electric Co., 87-ERA-36 (ALJ Oct. 26, 1987) (order ruling on the Department of Labor's request for interlocutory appeal to the Secretary of Labor), the ALJ denied the Office of the Solicitor's request for an interlocutory appeal to the Secretary in regard to his earlier ruling denying the Solicitor's motion to quash subpoenas. The ALJ found that the Solicitor had failed to show irreparable injury if an interlocutory appeal was not granted, and that the Department had an adequate remedy insofar as OALJ subpoenas are not self executing, and may only be enforced by the Federal District Court. See 29 C.F.R. § 18.24.

VII B 4 Scope of subpoena

An administrative subpoena is valid if "[t]he inquiry . . . [is] within the authority of the agency, the demand . . . [is] not too indefinite, and the information . . . [is] reasonably relevant to the inquiry." United States v. Allis Chalmers Corp., 498 F. Supp. at 1027, 1029 (E.D. Wis. 1964) (citing United States v. Morton Salt Co., 338 U.S. 632, 70 S. Ct. 357, 94 L.Ed. 401 (1950)).

Coupar v. Federal Prison Industries/Unicor, 92-TSC-6 and 8 (ALJ May 8, 1992) (order granting request for subpoenas).

[Nuclear & Environmental Digest VII B 4]
SUBPOENA DUCES TECUM SERVED ON PARTY

In Graf v. Wackenhut Services LLC , 1998-ERA-37 (ALJ Mar. 9, 1999), Respondent served a subpoena duces tecum on Complainant. Complainant objected, arguing that a subpoena duces tecum is an inappropriate method for obtaining a document from a party. The ALJ found that a party had the option of proceeding under either 29 C.F.R. § 18.24 (subpoenas) or § 18.19 (production of documents) in compelling the production of documents by an opposing party, but that the regulations must be construed in pari material . The ALJ concluded that the specific terms of section 18.19 should govern the general terms of section 18.24 in determining the proper scope of a subpoena duces tecum and the period of time in which a party has to respond to such.

VII B 5 Quashing of subpoena

In Seda v. Wheat Ridge Sanitation District, 91-WPC- 1, 2 and 3 (ALJ June 26, 1991) (prehearing order), the ALJ granted Employer's motion to partially quash subpoenas of Board members when the subpoenas sought "all other documents in your possession concerning . . . District operations." Employer had contended that literal compliance with the subpoenas would be logistically difficult and disrupt the operations of the District. In addition, the documents did not appear to be relevant.

[Nuclear and Environmental Whistleblower Digest VII B 5]
SUBPOENA AUTHORITY OF ALJ; PROTECTIVE ORDER TO PROTECT PRIVACY AND CONFIDENTIAL MATTERS TO EXTENT POSSIBLE

[Nuclear & Environmental Whistleblower Digest VII B 5]
SUBPOENA; AUTHORITY OF ALJ TO ISSUE; TOUHY REGULATIONS

The District of Columbia U.S. District Court held in Bobreski v. U.S. Environmental Protection Agency , 284 F.Supp.2d 67 (D.D.C. 2003), that DOL ALJs do not have the authority to issue subpoenas in CAA, SDWA, SWDA, CERCLA, WPCA, and TSCA whistleblower cases. The court also held that EPA's denial of the Complainant's request for an investigator's testimony under EPA's Touhy regulations was not arbitrary and capricious.

[Nuclear & Environmental Whistleblower Digest VII B 5]
SUBPOENA; MOTION TO COMPEL DEPOSITION OF FORMER EMPLOYEE

In Kaufman v. U.S. Environmental Protection Agency , 2002 CAA 22 (ALJ Aug. 5, 2003), Complainant served a subpoena on a former EPA official. Although Complainant alleged that the former official was still retained as a paid consultant, Respondent presented a declaration under penalty of perjury that such was not the case, whereas Complainant's allegation was based on unsubstantiated second hand information. Thus, the ALJ found that there was no employment relationship between Respondent and the former official such that Respondent had no control over the former official. Accordingly, the ALJ denied Complainant's motion to compel discovery.

[Nuclear and Environmental Digest VII B 5]
QUASHING OF SUBPOENAS; STRIKING OF WITNESS WHO REFUSES TO BE DEPOSED

In Graf v. Wackenhut Services LLC , 1998-ERA-37 (ALJ Jan. 28, 1999)(order granting motion to quash subpoena), a person listed on Complainant's list of intended witnesses moved to quash a subpoena served on him by Respondent. That person was not a party to the action nor an employee of Respondent. The ALJ granted the motion to quash, citing 29 C.F.R. § 18.24 and Malpass v. General Elec. Co. , 1994 WL 897244 at *9, 85-ERA-38/39 (Sec'y Mar. 1, 1994). The ALJ suggested that the movant consider voluntary participation in a deposition.

In a simultaneous order, the ALJ granted Respondent's motion to strike the same witness from Complainant's witness list, finding that it would unfairly prejudice Respondent if Complainant was allowed to call that witness at the hearing without first allowing Respondent to depose the witness. Graf v. Wackenhut Services LLC , 1998-ERA-37 (ALJ Jan. 28, 1999) (order granting motion to strike witness). In a subsequent order, however, the ALJ rescinded this order based on Complainant's offer of proof that established to the ALJ's satisfaction that at least some of this witness' testimony would be an integral part of Complainant's case and should be allowed at the hearing. Graf v. Wackenhut Services LLC , 1998-ERA-37 (ALJ Feb. 18, 1999).

[Nuclear and Environmental Digest VII C 1]
SUMMARY DECISION; PLAINTIFF DID NOT ESTABLISH EXISTENCE OF GENUINE ISSUE OF MATERIAL FACT ABOUT WHETHER LANGUAGE IN BID WAS DESIGNED TO CUT HIM OUT OF HIS JOB WITH A NEW SUBCONTRACTOR WHERE PLAINTIFF FAILED TO PUT THE BID LANGUAGE INTO THE RECORD

In Vander Boegh v. EnergySolutions, Inc. , 12-cv-5643 (6th Cir. Aug. 14, 2013) (2013 WL 4105648) (unpublished) (case below 2006-ERA-26), the Plaintiff was a landfill manager who engaged in a range of protected activity while working for a subcontractor to handle waste management at the Paducah Gaseous Diffusion Plant (PGDP). When another contractor took over the PGDP contract and subcontracted with a different company for waste management, the Plaintiff was not hired as the landfill manager and his employment was terminated. The Plaintiff alleged that he was purposely drafted out of the new contractor's bid on the contract in retaliation for his protected activity, and named three defendants in his ERA whistleblower complaint: the original contractor and the new contractor and subcontractor. A district court granted summary judgment in favor of all three Defendants. The Sixth Circuit reversed the summary judgment as to the new subcontractor and affirmed it as the other two Defendants.

A manager who had previously been found in a DOE whistleblower proceeding to have retaliated against the Plaintiff had left employment with the original contractor and joined the new contractor. He assigned the new contractor in preparing its bid for the PGDP contract. The Plaintiff alleged that this manager drafted the waste management portion of the bid in such a way as to eliminate the Plaintiff as landfill manager and insert himself into that position. Applying the Burlington Northern "materially adverse" standard for determining adverse employment action in the retaliation context, the court found that the Plaintiff had failed to establish a genuine issue of material fact whether the bid language was materially adverse. The court faulted the Plaintiff for failing to include in the record the actual bid language, and sole reliance on his own bare assertions.

[Nuclear and Environmental Digest VII C 1]
SUMMARY DECISION; HOW AN ALJ SHOULD DETERMINE A MOTION FOR SUMMARY DECISION

SUMMARY DECISION; CAUSATION, AND AFFIRMATIVE DEFENSE OF "CLEAR AND CONVINCING," ARE POOR CANDIDATES FOR SUMMARY DECISION

SUMMARY DECISION; TEMPORAL PROXIMITY MUST BE EVALUATED BASED ON THE RECORD AS A WHOLE

Overview on how to determine a motion for summary decision

In Franchini v. Argonne National Laboratory , ARB No. 11-006, ALJ No. 2009-ERA-14 (ARB Sept. 26, 2012), the ARB explained in detail how an ALJ should determine a motion for summary decision:

   Pursuant to 29 C.F.R. § 18.40(d), an ALJ may "enter summary judgment for either party if the pleadings, affidavits, material obtained by discovery, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision." 29 C.F.R. § 18.40(d) (2012). To determine whether there is any genuine issue of a material fact, the ALJ must examine the elements of the complainant's claims to sift the material facts from the immaterial.6 Once materiality is determined, the ALJ next must examine the arguments and evidence the parties submitted to determine if there is a genuine dispute as to the material facts. Drawing from the federal law pertaining to summary judgment motions in federal court, we adopt the principle that a "genuine issue" exists if a fair-minded fact-finder (the ALJ in whistleblower cases) could rule for the nonmoving party after hearing all the evidence, recognizing that in hearings testimony is tested by cross-examination and amplified by exhibits and presumably more context. When reviewing the evidence the parties submitted, the ALJ must view it in the light most favorable to the non-moving party, the complainant in this case. The moving party must come forward with an initial showing that it is entitled to summary decision. 29 C.F.R. § 18.40(d).

   Though not very clearly, 29 C.F.R. § 18.40 appears to incorporate two well-recognized methods by which a respondent can demonstrate the lack of a genuine issue of material fact. One method is to assert that the complainant lacks evidence to support an essential element of his case. In such a case, the complainant must specifically identify facts that, if true, could meet his burden of proof at an evidentiary hearing on the merits. Another method of testing the pleadings is for the respondent to attach affidavits or other documents and evidence, which purport to state the undisputed facts and challenge the complainant to produce admissible, contrary evidence that creates a genuine issue of fact. See 29 C.F.R. § 18.40(c). In this latter method, the opposing party must do more than identify specific facts but must go beyond asserting facts and attach admissible contradictory evidence to raise a genuine issue of material fact. If the opposing party fails to attach admissible evidence, then the judge could find that there is no genuine issue of material fact and proceed to determine whether the moving party is entitled to judgment as a matter of law. Stated more simply, the complainant must identify the specific facts and/or evidence he will bring to trial and such facts and evidence, if believed at trial, must be enough to allow for a ruling in his favor on the issue in question. The burden of producing evidence "is not onerous and should preclude [an evidentiary hearing] only where the record is devoid of evidence that could reasonably be construed to support the [complainant's] claim." White v. Baxter Healthcare Corp. , 533 F.3d 381, 400 (6th Cir. 2008); Anderson v. Liberty Lobby, Inc. , 477 U.S. at 252.

   In ruling on a motion for summary decision, neither the ALJ nor the Board weighs the evidence or determines the truth of the matters asserted. The Board "construe[s] complaints and papers filed by pro se complainants 'liberally in deference to their lack of training in the law' and with a degree of adjudicative latitude." Hyman v. KD Res. L.L.C., ARB No. 09-076, ALJ No. 2009-SOX-020, slip op. at 8 (ARB Mar. 31, 2010) (citations omitted). Denying summary decision because there is a genuine issue of material fact simply means that an evidentiary hearing is required to resolve some factual questions; it is not an assessment on the merits of any particular claim or defense.

USDOL/OALJ Reporter at 6-7 (footnotes omitted).

Summary decision and the issue of causation

In Franchini , the ALJ granted summary decision on the issue of causation, essentially finding that the Complainant's alleged insubordination was an intervening event between the protected activity and the termination of employment, and thus protected activity was not a contributing factor. The ALJ summarily found that temporal proximity of five months did not establish a prima facie inference of causation. The ARB found that the ALJ made errors in deciding the causation issue on summary decision. The ARB explained that causation is an especially poor candidate for summary decision:

As often noted in the United States Court of Appeals for the Seventh Circuit, summary decisions are difficult in "employment discrimination cases, where intent and credibility are crucial issues." Obviously, the issue of causation in discrimination cases involves questions of intent and motivation when the complainant argues that the employer's asserted reasons were not the real reasons for its actions. Summary decision on the issue of causation is even more difficult in ERA whistleblower cases where Congress made it "easier for whistleblowers to prevail in their discrimination suits," requiring only that the complainant prove that his protected activity was "a contributory factor" rather than the more demanding causation standards like "motivating factor," "substantial factor" or "but for" (determinative factor) causation. Trimmer v. U.S. Dep't of Labor , 174 F.3d 1098, 1101 (10th Cir. 1999). Contributory factor means any factor which, alone or in connection with other factors, "tends to affect in any way the outcome of the [employment] decision."16 Even where a respondent asserts legitimate, nondiscriminatory reasons for its actions, a complainant can create a genuine issue of fact by pointing to specific facts or evidence that, if believed, could (1) discredit the respondent's reasons or (2) show that the protected activity was also a contributing factor even if the respondent's reasons are true.

Complainants may rely on circumstantial evidence to prove that protected activity contributed to the unfavorable employment action in question. For example, in some circumstances, evidence of inconsistencies in the respondent's reasons could present sufficient circumstantial evidence for the ALJ to reject the employer's asserted reasons and, if sufficiently persuasive, accept the complainant's claim that protected activity was a contributory factor. Other circumstantial evidence may include evidence about motive, bias, work pressures, past and current relationships of the involved parties, animus, temporal proximity, pretext, and material changes in employer practices, among other types of evidence. Where circumstantial evidence supports a reasonable inference that protected activity could have been a factor, the complainant's whistleblower claim must proceed to an evidentiary hearing unless the employer can establish an affirmative defense through a properly supported motion for summary decision. In a motion for summary decision, an employer cannot nullify the complainant's evidence of contributory factor by simply presenting a different independent and lawful reason for the unfavorable employment action. The ALJ must be convinced through undisputed facts and as a matter of law that the protected activity was not a factor.

USDOL/OALJ Reporter at 9-10 (footnotes omitted).

Summary decision and the issue of temporal proximity

The ARB then found that the ALJ erred in summarily determining that there was insufficient temporal proximity of the protected activity to the adverse action. The ARB wrote:

Temporal proximity is an important part of a case based on circumstantial evidence, often the "most persuasive factor." Beliveau v. U.S. Dep't of Labor , 170 F.3d 83, 87 (1st Cir. 1999) (environmental whistleblower case). Determining what, if any, logical inference may be drawn from the temporal relationship between the protected activity and the unfavorable employment action is not a simple and exact science but requires a "fact-intensive" analysis. It involves more than determining the length of the temporal gap and comparing it to other cases. Previous case law can be used as a guideline to determine some general parameters of strong and weak temporal relationships, but context matters. Before granting summary decision on the issue of causation, the ALJ must evaluate the temporal proximity evidence presented by the complainant on the record as a whole, including the nature of the protected activity and the evolution of the unfavorable personnel action.

USDOL/OALJ Reporter at 10-11 (footnotes omitted). The ARB found that the ALJ committed a second reversible error because the Complainant had proffered evidence that, if accepted as credible at a hearing, would have established that the temporal gap to have been less than four months, which the ARB found to be a material miscalculation. Finally, the ARB found that the ALJ committed reversible error by finding that the Complainant's alleged insubordination was an intervening event that severed any causal link between the protected activity and the firing, the record not containing undisputed evidence that the Complainant had violated a workplace policy other than a general claim of "insubordination." The Complainant had not turned over surreptitious audio recording made at the workplace as demanded by the Respondent. But the ARB observed that it could not assume without evidence in the record that the Respondent had an undisputed right to make such a directive and that the Complainant had to comply. The ALJ had also stated that the recordings violated state law, but cited no state law nor explained how evidence of record showed such a violation. Finally, and most importantly, the ARB noted that even if the Complainant's refusal to turn over his tapes was not pretext, this conclusion does not rule out protected activity as a contributing factor in the termination of his employment.

Summary decision and the "clear and convincing evidence" affirmative defense

The Respondent made an alternative argument that it was entitled to summary decision on its affirmative defense of "clear and convincing" evidence that it would have fired the Complainant in the absence of the protected activity. The ARB declined to address such a fact-intensive issue that the ALJ had not addressed. The ARB noted that the Respondent

carries the burden of proof on this affirmative defense and the burden is high. 42 U.S.C.A. § 5851(b)(3)(D). Like causation analysis for the plaintiff's burden of proof, [the Respondent's] affirmative defense presents an equally challenging issue to resolve by summary decision. Such analysis requires us to determine, on the record as a whole , how clear and convincing [the Respondent's] lawful reasons were for terminating [the Complainant's] employment. In analyzing the affirmative defense, we are not required to judge the rational basis of [the Respondent's] employment policies and decisions but we must assess whether they are so powerful and clear that termination would have occurred apart from the protected activity.

USDOL/OALJ Reporter at 13.

[Nuclear and Environmental Whistleblower Digest VII C 1]
SUMMARY DECISION; HOW ALJ MUST ANALYZE MOTION FOR SUMMARY DECISION AND ARB'S STANDARD AND SCOPE OF REVIEW OF ALJ'S GRANT OF SUMMARY DECISION

In Lee v. Parker-Hannifin Corp., Advanced Products Business Unit , ARB No. 10-021, ALJ No. 2009-SWD-3 (ARB Feb. 29, 2012), the ARB described how a motion for summary decision is to be analyzed and its standard and scope of review of ALJ's grant of summary decision:

   The Board reviews de novo an ALJ's grant of summary decision pursuant to 29 C.F.R. § 18.40 (2011). Pursuant to that regulation, summary decision is appropriate "if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision."4 The first step is to determine whether there is any genuine issue of a material fact. If the pleadings and documents the parties submitted demonstrate the existence of a genuinely disputed material fact, then summary decision cannot be granted. Denying summary decision because there is a genuine issue of material fact simply means that an evidentiary hearing is required to resolve some factual questions; it is not an assessment on the merits of any particular claim or defense.

    Determining whether there is an issue of material fact requires several steps. First, the ALJ must examine the elements of the complainant's claims to sift the material facts from the immaterial. Once materiality is determined, the ALJ next must examine the arguments and evidence the parties submitted to determine if there is a genuine dispute as to the material facts. The party moving for summary decision bears the burden of showing that there is no genuine issue of material fact. When reviewing the evidence the parties submitted, the ALJ must view it in the light most favorable to the non-moving party, the complainant in this case. The moving party must come forward with an initial showing that it is entitled to summary decision. The moving party may prevail on its motion for summary decision by pointing to the absence of evidence for an essential element of the complainant's claim.

    In responding to a motion for summary decision, the nonmoving party may not rest solely upon his allegations, speculation or denials, but must set forth specific facts that could support a finding in his favor. See 29 C.F.R. § 18.40(c). If the moving party presented admissible evidence in support of the motion for summary decision, the non-moving party must also provide admissible evidence to raise a genuine issue of fact. In reviewing an ALJ's summary decision, we do not weigh the evidence or determine the truth of the matters asserted.

Lee , ARB No. 10-021, USDOL/OALJ Reporter at 4-5 (footnotes omitted).

[Nuclear and Environmental Digest VII C 1]
SUMMARY DECISION; WHERE THERE IS CONFLICTING EVIDENCE ON CAUSATION IN A FAILURE TO HIRE CASE, SUMMARY DECISION WITHOUT AN EVIDENTIARY HEARING IS IMPROPER

In Hasan v. Enercon Services, Inc. , ARB No. 10-061, ALJ Nos. 2004-ERA-22 and 27 (ARB July 28, 2011), the Complainant, an experienced structural engineer, had been found in 1999 by the NRC to have been discriminated against by American Electric Power Company because of previous whistleblowing activities. Between 2002 and 2004, the Complainant responded to several job advertisements posted by the Respondent, Enercon Services, Inc. During that time, Enercon hired at least 15 individuals, many of whom were civil/structural engineers. The Complainant was not hired. The Complainant filed a "failure to hire" ERA whistleblower complaint. The ALJ granted summary decision because he found that "there was no evidence of pretext or lying by Respondent so as to raise an inference of discrimination in the hiring process." The ALJ ruled that the reason Enercon did not hire the Complainant was because it "hired no engineers in 2003 and 2004 based upon ads for its Germantown office or temporary engineering positions." On appeal, the ARB found that the ALJ had viewed the complaint too narrowly and that there was conflicting evidence raising questions of material fact regarding causation, making disposition by summary decision improper. The ARB remanded for an evidentiary hearing, emphasizing that it had reached no conclusion regarding the merits of the complaint.

[Nuclear and Environmental Digest VII C 1]
MOTION TO DISMISS; FAILURE TO STATE A CLAIM FOR RELIEF; SUMMARY DECISION

In Evans v. United States Environmental Protection Agency , ARB No. 08-059, ALJ No. 2008-CAA-3 (ARB Apr. 30, 2010), the Complainant was an environmental specialist working for the EPA. He filed a complaint with OSHA stating that he engaged in protected activity under the CAA, CERCLA, ERA, SDWA and TSCA when he informed EPA management and "appropriate enforcement authorities" about the "environmental risks of having employees participate in emergency response (ER) work without sufficient training." The Complainant also stated that he wrote a letter to the EPA Administrator describing these risks, and that the letter "provoked a spiral of harassment and animosity" against the Complainant. The Respondent filed a motion to dismiss, the Complainant responded with a memorandum in opposition and declarations from three coworkers, arguing that his complaint, as written, was sufficient to withstand the motion, and arguing the because the Respondent's motion was founded on factual allegations, the motion should be reviewed under the standards for summary decision. The ALJ found that the Complainant failed to state a claim upon which relief can be granted because the complaint and letter to the EPA Administrator did not contain information indicating that that the Complainant engaged in activity protected under the environmental acts.

On appeal the ARB analyzed the motion to dismiss under both the "failure to state a claim" and "summary decision" standards. The ARB stated that it applies FRCP 12(b)(6) to a motion to dismiss for failure to state a claim upon which relief can be granted, and 29 C.F.R. 18.40 and FRCP 56 to a motion for summary decision.

Failure to state claim

In the instant case, the ARB first affirmed the ALJ's determination that the Federal Government has not waived sovereign immunity under the ERA or TSCA. To set the context, the ARB then reviewed the purposes of the remaining acts cited in the complaint: the CAA, SDWA and CERCLA. The ARB stated that the "complaint must indicate that he apprised EPA or the 'appropriate enforcement authorities' he refers to in his complaint of a violation of the CAA (such as the potential emission of a pollutant into the ambient air), SDWA (the contamination of drinking water), or CERCLA (the cleanup of hazardous waste sites)." USDOL/OALJ Reporter at 6 (footnote omitted). The ARB observed that the Supreme Court had stated in Ashcroft v. Iqbal , 556 U.S. __, 129 S.Ct. 1937, 1949 (2009), that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. The Complainant's accusation that EPA discriminated against him was a legal conclusion. The ARB found that it was proper to interpret the complaint in the light of letter to the EPA Administrator referenced in the complaint. The ARB found that the complaint referenced occupational hazards that were not protected activity under the environmental acts, and personnel decisions which standing alone were not protected activity under those laws.

The ARB disagreed with the Complainant's argument that he was not required to describe how his alleged protected activity related to the environmental acts because the governing regulations do not require any particular form of complaint, other than to be in writing and to "include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violation." Id. at 8 (footnote omitted). Rather, the ARB held that although a complaint "does not need detailed factual allegations, it still must provide factual allegations that indicate the grounds for the complaint." Id. (citation omitted). The ARB stated that "[a] complaint 'must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Id . at 8-9 (citation omitted). The ARB stated that "[i]t is therefore not enough that Evans simply state in his complaint that he 'engaged in protected activity.' He must present a factual allegation indicating that the activity could qualify for protection under the environmental acts." Id. at 9.

The ARB reviewed the complaint as supplemented by the Complainant's letter to the EPA Administrator and concluded that it failed to state a claim for relief under the CAA, SDWA or CERLCA.

Summary Decision

EPA had attached a copy of the Complainant's letter to the EPA Administrator to its motion to dismiss, and the Complainant had included three affidavits from co-workers in his response arguing that the motion should be reviewed under the standard for summary decision. The ARB stated that "when the parties submit evidence outside the pleadings, the Board reviews a motion to dismiss as a request for summary decision." Id. (citations omitted). The ARB reviewed the complaint, the letter to the EPA Administrator, the Complainant's memorandum in opposition to the motion to dismiss, and supporting declarations, and found that they did not indicate that the Complainant had communicated a concern to EPA related to the administration or enforcement of the environmental acts. The declarations from co-workers described concern about the ER training being inadequate and poorly designed, but did not constitute protected activity because they only conveyed "a vague notion that EPA's conduct might negatively affect the environment." Id. at 10-11 (citations omitted). The ARB noted that it had previously ruled that complaints based on numerous assumptions and speculation are not protected. Moreover, the declarations only showed that the Complainant communicated concerns about working conditions, and not the administration or enforcement of the environmental acts. The record showed that the Complainant was concerned about matters that could theoretically arise during an emergency. But concerns about potential violations based on possible contingencies, are not protected activity under the environmental acts. Thus, the ARB found that the Respondents were entitled to summary decision.

Finally, the ARB rejected that the Complainant's argument that the ALJ had improperly denied the opportunity for discovery, because the ALJ had accepted the facts as alleged in the complaint and response, and because the facts relating to protected activity were within the Complainant's knowledge and control. Additional discovery, therefore, was not needed to counter the claim that the Complainant did not engage in protected activity.

The dissent

One member of the Board forcefully dissented. The dissenter stated that "the ALJ's requirement of specificity imposes upon a claimant seeking whistleblower protection under the environmental acts a heightened pleading standard that has been expressly rejected by the Supreme Court in employment discrimination cases. See Swierkeiewicz v. Sorema, N.A. , 534 U.S. 506, 122 S.Ct. 992 (2002)�." The dissenter found the Complainant's allegations of whistleblower protected activity to be facially plausible, and therefore sufficient to overcome a 12(b)(6) motion. The dissenter also stated that he rejected the notion that the ARB on appeal could transform the ALJ's 12(b)(6) disposition into a ruling as a matter of summary judgment. The dissent noted that the ALJ had expressly rejected consideration of the motion to dismiss under the summary judgment standard.

[Nuclear and Environmental Whistleblower Digest VII C 1]
SUMMARY JUDGMENT; REQUIREMENT IN CASES ARISING THE FOURTH CIRCUIT THAT BEFORE SUMMARY JUDGMENT BE ENTERED AGAINST A PRO SE LITIGANT, THAT LITIGANT MUST BE ADVISED BY THE COURT OF THE RIGHT TO FILE RESPONSIVE MATERIALS AND THAT THE FAILURE TO DO SO MIGHT RESULT IN SUMMARY JUDGMENT

In Hooker v. Westinghouse Savannah River, Co. , ARB No. 03-036, ALJ No. 2001-ERA-16 (ARB Aug. 26, 2004), the ARB reversed the ALJ based on Fourth Circuit law to the effect that before entering summary judgment against a pro se litigant, the district court must advise the litigant "of his right to file counter-affidavits or other responsive material and [alert the litigant] to the fact that his failure to so respond might result in the entry of summary judgment against him." Slip op. at 9, quoting Roseboro v. Garrison , 528 F.2d 309, 310 (4th Cir. 1975). Notably, the Complainant here did file a response to the motion and asked for additional time to further answer the motion. The ALJ granted the request and subsequently advised the Complainant twice of the need to respond further and twice extended the time for the Complainant to do so. The Complainant did not respond further and the ALJ granted summary judgment because the Complainant "did not produce sufficient evidence that [Respondent] constructively discharged or blacklisted him." Slip op. at 8. The ARB reversed, reasoning that the Complainant "was pro se and the ALJ did not notify him pursuant to Roseboro ."

[Nuclear and Environmental Whistleblower Digest VII C 1]
SUMMARY DECISION; MERE SPECULATION INADEQUATE TO DEFEND AGAINST MOTION SUPPORTED BY AFFIDAVITS THAT SHOW A FAILURE OF PROOF ON ESSENTIAL ELEMENT OF CASE; REFUSAL TO HIRE, LACK OF KNOWLEDGE BY HIRING OFFICIALS OF PROTECTED ACTIVITY

In Hasan v. Enercon Services, Inc. , ARB No. 04-045, ALJ No. 2003-ERA-31 (ARB May 18, 2005), the ARB affirmed the ALJ's dismissal on summary judgment where the Complainant had failed to set forth specific facts on an issue upon which he would bear the ultimate burden of proof at trial in response to a motion for summary judgment supported by affidavits from managers swearing that they had no knowledge of the Complainant's previous whistleblower activities when they made the decision not to hire him. In other words, the Respondent was entitled to summary decision where it established a complete failure of the Complainant's proof concerning an essential element of the case. The Complainant's only response to the motion had been speculation that the Respondent had not hired him because "some background check" must have disclosed his earlier whistleblower activities or that the affiants must have committed perjury.

To the same effect Hasan v. Southern Co. , ARB No. 04-040, ALJ No. 2003-ERA-32 (ARB Mar. 29, 2005).

[Nuclear and Environmental Whistleblower Digest VII C 1]
SUMMARY JUDGMENT MOTION; NON-MOVING PARTY MAY NOT RELY MERELY ON CONCLUSORY STATEMENTS

In Rockefeller v. U.S. Dept. of Energy, Carlsbad Area Office , ARB No. 03-048, ALJ No. 2002-CAA-5 (ARB Aug. 31, 2004), the ARB wrote that once a party which has moved for summary decision "has demonstrated an absence of evidence supporting the non-moving party's position, the burden shifts to the non-moving party to establish the existence of an issue of act that could affect the outcome of the litigation. The non-moving party may not rest upon mere allegations, speculation, or denials of his pleadings, but must set forth specific facts on each issue upon which he would bear the ultimate burden of proof." Slip op. at 3-4 (citations omitted). Thus, in Rockefeller , the ARB granted summary judgment against the Complainant's blacklisting claim where his response to the Respondent's summary judgment motion, though verified under oath, contained little more than conclusory statements that the Respondent had blacklisted him.

[Nuclear and Environmental Whistleblower Digest VII C 1]
SUMMARY JUDGMENT; REVERSIBLE ERROR TO RULE ON MOTION PRIOR TO RECEIPT OF RESPONSE BY NON-MOVING PARTY OR EXPIRATION OF 15-DAY RESPONSE PERIOD

In Rockefeller v. U.S. Dept. of Energy, Carlsbad Area Office , ARB No. 03-048, ALJ No. 2002-CAA-5 (ARB Aug. 31, 2004), the Respondent had moved for summary decision. The ALJ granted the motion 10 days after it was filed and before receiving a response from the Complainant. The applicable regulations provide 15 days for a response to a motion. The ARB found that the ALJ's ruling was in error, and that the Complainant did not waive his opportunity to respond because he filed a request for reconsideration in which he specifically objected to the premature ruling where the ALJ denied the request for reconsideration.

VII C 1 Extent of discovery required to be permitted before ruling on a motion for summary decision

In Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995), the Secretary reversed an ALJ's decision on motion for summary judgment, where although diligent discovery efforts had been made, the Complainant was not able to obtain a copy of a report to counter the Respondent affidavits in support of its motion for summary decision until the same day the ALJ granted summary judgment, and even then, outside of discovery.

[ Editor's note: In Holden, at the time the ALJ issued his recommended decision, the Complainant had not submitted any evidence to counter the Respondent's motions. The Respondent, however, had resisted complying with the ALJ's order to produce the reports that Complainant obtained outside discovery on the same day as the ALJ's recommended decision. The Respondent, in fact, never supplied the reports prior to issuance of the ALJ's decision. The reports contained statements, that if found to be true, provided direct evidence that Respondent was blacklisting the Complainant.]

[Nuclear & Environmental Whistleblower Digest VII C 1]
SUMMARY DECISION; BALD CONCLUSORY ASSUMPTION IS INSUFFICIENT TO OPPOSE MOTION

In Honardoost v. PECO Energy Co. , ARB No. 01-030, ALJ No. 2000-ERA-36 (ARB Mar. 25, 2003), the ARB affirmed the grant of summary decision to Respondent where Complainant failed to proffer any disputed material facts that, if proven, would establish that his employment was terminated because he engaged in protected activity. Merely alleging that he engaged in a protected activity and that he was terminated does not establish a causal connection. The ARB stated that a "bald conclusory assumption, without any allegation of supporting material facts, is simply insufficient to carry [a complainant's] burden of opposing a motion for summary judgment." (citation omitted). Of note in the ARB's view was the fact that there was a four year gap between the protected activity and the adverse employment action. The ARB made a similar finding in regard to a reduction in Complainant's annuity benefit, which Respondent had explained as caused by an accounting error.

[Nuclear & Environmental Whistleblower Digest VII C 1]
SUMMARY JUDGMENT; FAILURE OF COMPLAINANT TO COUNTER RESPONDENT'S AFFIDAVITS AS TO ESSENTIAL ELEMENT OF PROOF ON CAUSATION

In Parker v. Tennessee Valley Authority , ARB No. 99 123, ALJ No. 1999 ERA 13 (ARB June 27, 2002), the ARB affirmed the ALJ's grant of Respondent TVA's motion for summary judgment where Respondent presented affidavits establishing that Complainant was laid off by his employer (a contractor for a TVA outage) pursuant to an "Order of Value," which was a system used by the employer for determining the order of layoff. Respondent's affidavits also established that the "Order of Value" was established prior to Complainant's alleged protected activity. In response to Respondent's motion for summary judgment, Complainant failed to adduce evidence showing that Respondent played any role in the creation of the Order of Value or the decision to lay him off. The Board wrote:

As a consequence, we find that the material facts as to the creation of the Order of Value are not in dispute, and determine that Parker has failed to set forth proof as to essential elements of his case, to wit, (1) that TVA took an adverse action against him, and (2) that his protected activity motivated the adverse action. 'A complete failure of proof concerning an essential element of the non moving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.' Celotex Corp. , 477 U.S. at 323.

[Nuclear and Environmental Whistleblower Digest VII C 1]
MOTION TO DISMISS ACCOMPANIED BY EVIDENCE OUTSIDE PLEADING TREATED AS MOTION FOR SUMMARY DECISION

Where a movant submits evidence outside the pleadings to support a motion to dismiss, the motion must be viewed as a motion for summary decision under 29 C.F.R. § 18.40. Erickson v. U.S. Environmental Protection Agency , ARB No. 99-095, ALJ No. 1999-CAA-2 (ARB July 31, 2001).

[Nuclear & Environmental Digest VII C 1]
SUMMARY DECISION; COMPLAINANT'S OWN AFFIDAVIT BASED ON NAKED SPECULATION INSUFFICIENT TO OVERCOME RESPONDENT'S MOTION FOR SUMMARY DECISION SUPPORTED BY AFFIDAVIT

In Hasan v. Burns & Roe Enterprises, Inc. , ARB No. 00-080, ALJ No. 2000-ERA-6 (ARB Jan. 30, 2001), Complainant responded to Respondent's motion for summary decision -- which was supported by the affidavit of the hiring official averring that he did not know about Complainant's whistleblowing activity prior to making the decision not to hire - with his own affidavit, which contained his speculation as to the reasons he was not hired. Complainant argued that at the summary judgment stage, the ALJ was required to accept the statements in his affidavit as true. The ARB found that to defeat a motion for summary judgment the non-moving party must do so through some means other than mere speculation or conjecture.

[Nuclear & Environmental Digest VII C 1]
DISCOVERY; APPROPRIATE LIMITATIONS AT SUMMARY DECISION STAGE

In Williams v. Lockheed Martin Corp. , ARB Nos. 99-054 and 99-064, ALJ Nos. 1998-ERA-40 and 42 (ARB Sept. 29, 2000), the ARB held that the ALJ appropriately limited discovery to the specific event that prompted Complainants' complaints -- the allegation that Respondent had tape-recorded a meeting in violation of whistleblower laws. The ARB found that the complaints did not justify a "wide-ranging discovery fishing expedition."

[Nuclear and Environmental Digest VII.C.1.]
RESPONSIVE PERIOD FOR MOTIONS; 15 DAYS WHEN PLEADING IS SERVED BY MAIL

In Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy , ARB Nos. 99-002, 99-063, 99-067, 99-068, ALJ Nos. 1998- CAA-10 and 11, 1999-CAA-1, 4 and 6 (ARB Oct. 31, 2000), the ALJ issued an order to show cause why the complaint should not be dismissed, directing Complainant to respond by November 20, 1998, and permitting all parties until November 27, 1998 to file briefs in support of their positions. Complainant filed a response to the order to show cause; both Respondents filed motions to dismiss as their response to the order permitting them to file briefs. The ALJ issued a recommended decision of dismissal on December 4, 1998, prior to receipt of Complainant's response to the motions to dismiss. Although the ALJ discussed the propriety of dismissal with reference to his show cause order, in the order he also granted the motions to dismiss. On appeal to the ARB, Complainant objected to the ALJ's failure to wait for Complainant's response to the motions to dismiss prior to issuing his recommended decision.

The ARB noted that the OALJ Rules of Practice and Procedure at 29 C.F.R. § 18.6(b) and § 18.4(c)(3) would require an ALJ to wait 15 days before ruling on a motion served by mail. Nonetheless, the ARB found that, under the circumstances where Complainant's response to the order to show cause addressed precisely the same issues raised in the motions to dismiss, the ALJ did not commit reversible error.

[Nuclear & Environmental Digest VII C 1]
SUMMARY JUDGMENT; FAILURE TO COME FORWARD WITH FACT IN RESPONSE TO A SUPPORTED MOTION FOR SUMMARY DECISION

In Williams v. Lockheed Martin Corp. , ARB Nos. 99-054 and 99-064, ALJ Nos. 1998-ERA-40 and 42 (ARB Sept. 29, 2000), the ARB agreed with the ALJ's determination in ruling on a motion for summary decision that there were no material facts in dispute where Complainants failed to come forward with any facts in response to Respondent's well supported motion for summary decision. In Williams , Complainants alleged that Respondent violated the whistleblower laws when it left a tape-recorder running during an impromptu private session between physicians who had been studying employee health concerns and Respondent's employees, following a general public gathering. Respondent supported its motion for summary decision with evidence that the recording was not surreptitious, and that the tape recording was only an attempt by the company to accommodate an employee who had fallen ill. Moreover, Respondent took no adverse action against either Complainant. On this basis, the ALJ found, and the ARB agreed, that Respondents were entitled to summary decision as a matter of law.

[Nuclear & Environmental Digest VII C 1]
SUMMARY JUDGMENT; DISCOVERY

In Hasan v. Commonwealth Edison Co. , 2000-ERA-1 (ALJ Jan. 10, 2000), the ALJ granted summary judgment against Complainant where Complainant's pleadings failed to state a claim warranting a formal hearing on his claim of failure to hire/rehire. The ALJ noted that summary judgment is not appropriate when a moving party denies access to information by means of discovery to a party opposing the motion. In the instant case, however, the ALJ reviewed Complainant's discovery requests and found that they did not seek the specific information required to establish a prima facie case of failure to hire/rehire or blacklisting. The ALJ held that "[i]n the absence of a viable claim, discovery requests are merely a fishing expedition in a search for information which should not be available to Complainant. See generally Naartex Consulting Corporation v. Watt , 722 F.2d 779, 788 (D.C. Cir. 1983); Lehigh Valley Industries, Inc. v. Birenbaum , 527 F.2d 87, 93-95 (2d Cir. 1975)(no abuse of discretion in the denial of discovery in face of bland assertions of violations); McLaughlin v. McPhail , 707 F.2d 800, 807 (4th Cir. 1983)(finding no prima facie showing . . . the district court properly exercised its discretion in denying discovery)."

[Nuclear & Environmental Digest VII C 1]
SUMMARY DECISION; ALJ MAY CONVERT A MOTION TO DISMISS INTO A OTION FOR SUMMARY DECISION

In Hall v. USDOL , No. 98-9547 (10th Cir. Oct. 13, 1999) (unpublished) (case below 1997-SDW- 9), Complainant argued that the ALJ erred by, without notice, converting Respondent's motion to dismiss into a motion for summary decision. The Tenth Circuit, found no administrative rule or regulation specifically authorizing the ALJ's action, but found that 29 C.F.R. § 18.41 is similar to FRCP 56. The court, approving the ALJ's conversion of the motion, wrote:

Federal Rule of Civil Procedure 12(b) provides that if a party makes a motion to dismiss for failure to state a claim upon which relief can be granted, and if "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." We therefore find it useful to reason from Rules 12(b) and 56 and interpretive federal case law by analogy.

[Nuclear & Environmental Digest VII C 1]
SUMMARY JUDGMENT; ALJ'S RENDERING OF DECISION WITHOUT NOTICE THEREBY CUTTING OFF DISCOVERY

In Hall v. USDOL , No. 98-9547 (10th Cir. Oct. 13, 1999) (unpublished) (case below 1997-SDW- 9), Complainant argued that the ALJ erred by, without notice, converting Respondent's motion to dismiss into a motion for summary decision. Although seven months had passed since the ALJ had instructed the parties to commence discovery, Complainant asserted that he did not conduct discovery because he did not know he would be facing a motion for summary judgment. The court, however, noting that Complainant attached affidavits and other materials to his response to the motion to dismiss, held that "[a] party who submits material beyond the pleadings in opposition to a motion to dismiss cannot complain of undue surprise if the district court treats the motion as a summary judgment motion." (citation omitted).

[Nuclear & Environmental Digest VII C 1]
DISCOVERY; ALJ DOES NOT ABUSE HIS OR HER DISCRETION IN LIMITING DISCOVERY PRIOR TO RULING ON JURISDICTIONAL UNDERPINNINGS OF CASE

In Johnson v. Oak Ridge Operations Office , ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30, 1999), the presiding ALJ did not permit Complainants to engage in discovery of Case Review and Analysis sheets [hereafter "reports"] that they had prepared in the course of their work, prior to the ALJ's ruling on Respondent's challenges to the jurisdictional underpinnings of the case. Complainants alleged that they needed the discovery because of the great number of reports prepared by them during the course of their work. The ARB held that the ALJ's limit on discovery was neither arbitrary nor an abuse of discretion because discovery of the reports would merely have provided further details regarding Complainant's alleged protected activity criticisms of Respondents' implementation and enforcement of federal personnel security clearance requirements and procedures. The ARB found that additional discovery would not have changed the nature of the Complainants' protected activities claim, or whether such activities were protected under the environmental whistleblower laws.

[Nuclear & Environmental Digest VII C 1]
MOTION FOR SUMMARY DECISION; IF SUPPORTED BY EVIDENCE, PARTY OPPOSING MOTION MUST SUBMIT EVIDENCE TO CONTROVERT

In Williams v. Lockheed Martin Corp. , 1998-ERA-40 and 42 (ALJ Mar. 22, 1999), the ALJ found that once a defendant submits exhibits, affidavits, depositions, and a memorandum of law to support a motion for summary judgment, and the plaintiff fails to submit evidence in any form to controvert the motion ( i.e. , evidence of specific facts demonstrating the existence of a genuine issue for trial), the defendant's evidence must be taken as true. The ALJ noted the existence of discovery disputes, but observed that he had conducted a discovery conference in which he had narrowed discovery to relevant issues, and concluded that Respondent's discovery responses had been adequate. Therefore, summary decision was not prohibited by 29 C.F.R. § 18.40(d).

[Nuclear and Environmental Digest VII C 1]
SUMMARY JUDGMENT; COMPLAINT RAISED SUFFICIENT INFORMATION TO WARRANT FURTHER INQUIRY

In Moore v. U.S. Dept. of Energy , 1998-CAA-16 (ALJ Dec. 24, 1998), the ALJ declined to grant summary judgment against Complainant based on Respondent's contention that Complainant had failed to allege a prima facie case, where, although Complainant's complaint was lacking in specific details, it stated enough to merit inquiry.

[Nuclear & Environmental Digest VII C 1]
EMPLOYER; PARENT CORPORATION NOT DISMISSED PURSUANT TO MOTION FOR SUMMARY DECISION WHERE GENUINE ISSUE OF MATERIAL FACT

In Ricketts v. Northeast Utilities Corp. , 1998-ERA-30 (ALJ Oct. 29, 1998), the parent corporation of Respondent atomic power plant moved in a motion for summary decision for dismissal as a party on the ground that a parent corporation is not responsible for a subsidiary's violation of law, absent special circumstances. The ALJ denied the motion, finding that Complainant had alleged sufficient facts of discrimination by the parent corporation, and also a requisite connection to the management and operation of the plants where Complainant worked, in its response to the motion to survive the motion for summary judgment -- in other words, Complainant raised a genuine issue of material fact on this issue.

[N/E Digest VII C 1]
SUMMARY DECISION; COMPLAINANT CANNOT STAND ONLY ON A SENSE THAT RESPONDENT WAS UNFAIR

In Pantanizopoulos v. Tennessee Valley Authority , 96-ERA-15 (ARB Oct. 20, 1997), Complainant did not receive an anticipated monetary performance award because his performance evaluation was lowered by his immediate supervisor's supervisor. The ALJ granted Respondent's motion for summary decision because Complainant had not provided any evidence in response to the motion showing that he had engaged in protected activity under the ERA, or that Respondent had violated the ERA in denying Complainant a performance award. The ALJ wrote that "[Complainant] relies only on his sense that the actions of Respondent are unfair in some way. Such a showing is not the affirmative evidence necessary to defeat a motion for summary judgment." The ARB adopted the ALJ's findings and dismissed the complaint.

[N/E Digest VII C 1]
SUMMARY DECISION; ADEQUATE OPPORTUNITY FOR DISCOVERY; APPROPRIATENESS WHEN ELUSIVE CONCEPTS SUCH AS MOTIVE OR INTENT ARE INVOLVED; SUFFICIENCY OF FILING OF VERIFIED COMPLAINT TO ESTABLISH GENUINE ISSUES OF FACT

In Kesterson v. Y-12 Nuclear Weapons Plant , 95-CAA-12 (ARB Apr. 8, 1997), summary decision was appropriate in regard to factual allegations that did not establish protected activity. Complainant excepted to summary judgment on the ground that full discovery was allegedly denied, citing Flor v. Department of Energy , 93-TSC-1 (Sec'y Dec. 9, 1994). The Board distinguished Flor because in that case the complainant had filed timely interrogatories and requests for production of documents that the respondent had failed to answer, and there was a pending motion to compel when summary decision was granted. In the instant case, Complainant filed his first discovery requests ten months after the ALJ had closed discovery.

Complainant also contended that he had established a genuine issue of material fact on the crucial issue of motivation. The Board's discussion follows:

Complainant relies on outdated authority as support for his opposition to summary decision. See Armstrong v. City of Dallas , 997 F.2d 62, 66 (5th Cir. 1993) ("The once frequently repeated characterization of summary judgment as a disfavored procedural shortcut no longer appertains.") More current case law makes it clear that "[g]enuine issues of material fact are not the stuff of an opposing party's dreams. On issues where the nonmovant bears the ultimate burden of proof, he must present definite, competent evidence to rebut the motion." Mesnick v. General Electric Co ., 950 F.2d 816, 822 (1st Cir. 1991), cert. denied, esnick v. General Elec. Co. , 504 U.S. 985 (1992), citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256-57 (1986). The court in Mesnick v. GE , an age discrimination and retaliation case also involving difficult issues of motive, went on to hold that "summary judgment can be appropriately entered even where elusive concepts such as motive or intent are involved." Id . The court granted summary judgment on both the age discrimination and retaliation claims. Even though the plaintiff had submitted "a plethora" of evidence on his professional competence and some evidence of age-motivated discrimination, the court found that "the summary judgment record contained no evidence from which a rational jury could infer, without the most tenuous insinuations, that [defendant's] legitimate, nondiscriminatory reason for cashiering [plaintiff] was actually a pretext for age discrimination [and] the district court did not err in defenestrating the plaintiff's claim." Id . at 826 (emphasis in original). The court also affirmed summary judgment on the retaliation claim because "[plaintiff] tendered nothing, direct or circumstantial, suggesting a retaliatory animus." Id . at 828.

95-CAA-12 @ 6 (footnote omitted). Finally, the Board rejected Complainant's argument that the filing of a verified complaint is itself sufficient to establish genuine issues of fact for a hearing.

SUMMARY DECISION; FAILURE TO RESPOND UNTIL BEFORE SECRETARY OR BOARD; SUPPORT FOR ALLEGATIONS
[N/E Digest VII C 1]

In Saporito v. Florida Power & Light Co. , 94-ERA-35 (ARB July 19, 1996), Complainant alleged that a law firm that represents the named employer retaliated against Complainant by contacting an attorney for another employer regarding Complainant. Respondent moved for summary decision asserting that the conversation concerning Complainant could not have adversely affected Complainant's employment at a facility of the other employer because the conversation took place after the other employer had taken adverse action against Complainant and even after Complainant had filed an initial complaint against the other employer. The ALJ recommended granting the motion for summary decision.

Complainant did not respond to the issue of timing while the case was before the ALJ, but waited until his rebuttal brief before the Secretary. The Board held that Complainant's belated response did not remedy the fact that he made no attempt to counter Respondent's assertion before the ALJ.

The Board also noted that Complainant may have been arguing that summary decision was not appropriate because the law firm did not support its assertions about timing with affidavits. The Board noted that this argument was unpersuasive in view of Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986) (where moving nonmoving party will bear burden of proof at trial on dispositive issue, moving party may rely solely on pleadings, depositions, answers to interrogatories, and admissions on file; nonmoving then must go beyond the pleadings and by his or her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing genuine issue for trial).

VII C 1 Opportunity of non-moving party to make full discovery

A motion for summary judgment may be continued or denied if the non-moving party has not had an opportunity to make full discovery. Gillilan v. Tennessee Valley Authority, 91-ERA-31 and 34 (Sec'y Aug. 28, 1995).

VII C 1 Standard for granting summary decision

The standard for granting summary decision is set forth at 20 C.F.R. § 18.40(d) (1994). This section, which is derived from Fed. R. Civ. P. 56, permits an ALJ to recommend summary decision for either party where "there is no genuine issue as to any material fact and . . . a party is entitled to summary decision." 29 C.F.R. § 18.40(d). The non-moving party must present affirmative evidence in order to defeat a properly supported motion for summary decision. It is enough that the evidence consist of the party's own affidavit, or sworn deposition testimony and declaration in opposition to the motion for summary decision. The determination of whether a genuine issue of material fact exists must be made in the light most favorable to the non-moving party. Gillilan v. Tennessee Valley Authority, 91-ERA-31 and 34 (Sec'y Aug. 28, 1995).

VII C 1 Rule 12(g) as bar to subsequent 12(b) motion

In Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (Sec'y Aug. 21, 1995), the ALJ recommended dismissal of the Complainant's complaint under the employee protection provision of the Clean Air Act based on the Respondent's motion for dismissal under Fed. R. Civ. P. 12(b)(1). The Respondent's motion was based on an argument that the Complainant was not an "employee" of the Respondent within the meaning of the CAA whistleblower provision. The ALJ found that the case of Reid v. Methodist Medical Center of Oak Ridge, 93-ERA-4 (Sec'y Apr. 3, 1995), appeal docketed , No. 95-3648 (6th Cir. June 1, 1995), was dispositive. The Secretary noted that the Complainant had failed to counter the Respondent's factually based motion for summary disposition with affidavits of her own, which virtually ensured a favorable decision for the Respondent on the merits of the motion.

Nonetheless, the Secretary held that because the Respondent had previously moved for dismissal under Rule 12(b)(6) without including the Rule 12(b)(1) jurisdictional defense that the Complainant was not an employee within the meaning of the CAA, Rule 12(g) barred the Respondent advancing another 12(b) motion. The Secretary noted that the Respondent could argue for dismissal on this ground after a hearing on the complaint, but that it could not do so under Rule 12. Thus, the Secretary remanded the case for a hearing.

[Editor's note: The Secretary did not address whether the motion could have been treated as a motion for summary decision pursuant to 29 C.F.R. § 18.29 rather than a motion to dismiss pursuant to Fed. R. Civ. P. 12(b).]

a
7 c 1
VII C 1 Lack of supporting evidence by non-moving party - no automatic grant of motion where motion itself was unsupported or where motion lacks merit as a matter of law

Where a party opposing summary decision does not support its response with any evidence, the moving party is not entitled to summary decision for that reason where its motion is itself unsupported by supporting affidavits. See 29 C.F.R. § 18.40(c). In addition, the moving party is not entitled to summary decision based solely on the fact that the non-moving party did not support its response with evidence where the motion is not meritorious as a matter of law. See Richter v. Baldwin Associates, 84-ERA-9 to 10 (Sec'y Mar. 12, 1986) (order of remand), slip op. at 5 n.1.

VII C 1 DISMISSAL; CONVERSION OF RULE 12(b)(1) MOTION INTO OTION FOR SUMMARY DECISION; MOVANT'S BURDEN TO ESTABLISH "ABSENCE" OF EVIDENCE TO SUPPORT NONMOVANT'S CASE

In Stephenson v. National Aeronautics & Space Administration , 94-TSC-5 (Sec'y Aug. 21, 1995), the Secretary held that even though the Complainant had failed to counter Respondent's Fed. R. Civ. P. 12(b)(1) motion to dismiss based on Complainant's not being an employee within the meaning of the TSCA, that defense could not be raised prior to hearing because the Respondent had previously raised a 12(b)(6) motion to dismiss. See Fed. R. Civ. P. 12(g).

The Secretary reconsidered that ruling in Stephenson v. National Aeronautics & Space Administration , 94-TSC-5 (Sec'y Sept. 28, 1995) (Order of Remand). The Secretary concluded that the Respondent's Rule 12(b)(1) motion must be converted into a Rule 12(b)(6)/Rule 56 motion because the issue of coverage as an employee is intertwined with the merits of the case. The Secretary further concluded that where, as here, the movant presents matters outside the pleadings, Rule 12 requires that the filing be treated as a motion for summary judgment under Rule 56, or more precisely under a DOL proceedings, under 29 C.F.R. § 18.40.

The Secretary then found that the movant's burden under the summary judgment standard is to demonstrate "'"an absence of evidence to support the nonmoving party's case"'". Slip op. at 5, quoting EEOC v. New Cherokee Corp., 829 F. Supp. 73, 77 (S.D.N.Y. 1993), which in turn was quoting Celotex Corp. v. Caltrett, 477 U.S. 317, 325 (1986).

VII C 1 SUMMARY DECISION; GOVERNING LAW

A motion for summary decision in an ERA whistleblower case is governed by 29 C.F.R. § 18.40 and 18.41. A party opposing a motion for summary decision "must set forth specific facts showing that there is a genuine issue of fact for the hearing." 18 C.F.R. § 18.40(c). Under the analogous Fed. R. Civ. P. 56(e), the non-moving party "may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial . . . . Instead, the [party opposing summary judgment] must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby , 477 U.S. 242, 256-257 (1986). The non-moving party's evidence, if accepted as true, must support a rational inference that the substantive evidentiary burden of proof could be met. "[W]here the non-moving party presents admissible direct evidence, such as through affidavits, answers to interrogatories, or depositions, the judge must accept the truth of the evidence set forth; no credibility or plausibility determination is permissible." Dewey v. Western Minerals, Inc. , No. 90-35252, 1991 U.S. App. LEXIS 1399 (9th Cir. Jan. 29, 1991), citing T.W. Elec. Serv. v. Pacific Elec. Contractor, 809 F.2d 626, 631 (9th Cir. 1987). On the other hand, if the non-movant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," there is no genuine issue of material fact and the movant is entitled to summary judgment. Celotex Corp. v. Catrett , 477 U.S. 317, 322-323 (1986).

Webb v. Carolina Power & Light Co., 93-ERA-42 (Sec'y July 14, 1995).

VII C 1 SUMMARY DECISION; OPPORTUNITY FOR RELEVANT DISCOVERY

In Stephenson v. National Aeronautics & Space Administration , 94-TSC-5 (Sec'y Sept. 28, 1995) (Order of Remand), the Secretary noted that in cases of summary disposition all parties must be given reasonable opportunity to present all material pertinent to such a motion. Pleadings, depositions, answers to interrogatories and admissions are considered in conjunction with the affidavits. The Secretary noted that whenever the moving party denies access to information by means of discovery to a party opposing the motion, the ALJ may deny the motion. 29 C.F.R. § 18.40(d).

VII C 1 Memorandum of law standing alone is insufficient to withstand a motion for summary judgment

In Norman v. Niagara Mohawk Power Corp., 85-ERA-13 (Sec'y June 1, 1995), the Secretary adopted the ALJ's recommendation that the case be dismissed on summary judgment based on lack of timeliness. In Norman , the Respondent sought summary judgment and submitted an affidavit of counsel alleging that the complaint was not timely filed, with a supporting letter from the Wage and Hour Division finding that there was no evidence of a timely complaint. In response, the Complainant filed a memorandum of law, but no affidavit or documentary evidence. Under the Rules of Practice, "[w]hen a motion for summary judgment is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denial of such pleadings ." 24 C.F.R. § 18.40(c) (emphasis added by Secretary).

VII C 1 Response briefs cannot raise new argument

In Du Jardin v. Morrison Knudsen Corp., 93-TSC-3 (ALJ Nov. 29, 1993) (order denying respondent's motion for summary decision), the ALJ refused to consider new arguments raised by Respondent in a reply brief to Complainant's response to Respondent motion for summary decision. The ALJ stated that Respondent

raised this issue originally in its motion for summary decision but did not provide legal argument until its Reply, and because reply briefs are for the purpose of rebuttal and not raising new legal arguments, I will not consider the arguments provided in [Respondent's] Reply.

VII C 1 If genuine issue of material fact is present, motion for summary decision must be denied

It is error to base a granting of a motion for summary judgment on a finding of fact. If a genuine issue of material fact is present, the motion should be denied and the matter decided after discovery and hearing. See Nunn v. Duke Power Co., 84-ERA-7 (Sec'y July 30, 1987) (remand) (ALJ found that a decision to terminate Complainant had been made on a certain date, but there was dispute over when a discharge decision was final under the employer's procedures).

VII C 1 Obligation of opposing party to present affirmative evidence

In considering a motion for summary judgment under 29 C.F.R. § 18.40, the Secretary relied upon authority discussing the "analogous Fed. R. Civ. P. 56(e)." A party opposing summary judgment under Rule 56(e) "may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial. . . . Instead, the [party opposing summary judgment] must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, 477 U.S. 242, 256-57 (1986). See also Carteret Sav. Bank, P.A. v. Compton, Luther & Sons, Inc., 899 F.2d 340, 344 (4th Cir. 1990). Thus, where the respondents presented materials in a motion for summary judgment establishing that the complainant was aware of the decision not to rehire him more than 30 days prior to the filing of the complaint, and the complainant did not submit any materials to substantiate the allegation that his application was rejected "a few weeks" prior to filing of the complaint and that he later received a letter outlining why he was not rehired, there was no genuine issue of material fact, and the respondents were entitled to summary judgment as a matter of law because the complaint was not timely filed. Gore v. CDI Corporation, 91-ERA-14 (Sec'y July 8, 1992).

VII C 1 Allegations & denials do not defeat motion for summary judgment

Pursuant to the DOL regulations and the developed case law, the non-moving party cannot defeat a supported motion for summary judgment by resting on allegations or denials. 29 C.F.R. § 18.40(c); Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1459 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). Moreover, the non-moving party cannot defeat a motion for summary judgment if the evidence presented, if accepted as true, does not support a rational inference that the substantive evidentiary burden of proof could be met. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-252 (1986); Helmstetter v. Pacific Gas & Electric Co., 86-SWD-2 (Sec'y June 15, 1989), slip op. at 9.

Brandt v. Ebasco Services, Inc., 88-ERA-31 (Sec'y July 9, 1990).

VII C 1 Summary judgment

In Howard v. Tennessee Valley Auth., 90-ERA-24 (Sec'y July 3, 1991), the Secretary applied the regulations at 29 C.F.R. §§ 18.40, 18.41, in considering whether to grant summary judgment in an ERA whistleblower case. If the movant's filing comports with the underlying documentation requirement of section 18.40, the response in opposition to the motion "must set forth specific facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R. § 18.40(c). The granting of summary judgment is appropriate where the parties have been afforded the opportunity for discovery and the non-moving party is unable to demonstrate that he will be able to produce sufficient evidence at trial to withstand a motion for directed verdict. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-1481 (6th Cir. 1989).

VII C 1 Standard for motion for summary decision

From: Trieber v. Tennessee Valley Authority, 87- ERA-25 (Sec'y Sept. 9, 1993):

A motion for summary judgment in an ERA whistleblower case is governed by 29 C.F.R. §§ 18.40 and 18.41. See, e.g., Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991). A party opposing a motion for summary judgment "must set forth specific facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R. § 18.40(c).

Under the analogous Fed. R. Civ. P. 56(e), the non-moving party "may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial. . . . Instead, the [party opposing summary judgment] must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, 477 U.S. 242, 256-257 (1986). See also Celotex Corp. v. Catrett, 477 U.S. 317 (1986) and Carteret Sav. Bank, P.A. v. Compton, Luther & Sons, Inc., 899 F.2d 340, 344 (4th Cir. 1990). The non-moving party's evidence, if accepted as true, must support a rational inference that the substantive evidentiary burden of proof could be met. Bryant v. Ebasco Services, Inc., 88-ERA-31 (Sec'y July 9, 1990), citing Liberty Lobby, 477 U.S. at 247-252. If the non-movant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," there is no genuine issue of material fact and the movant is entitled to summary judgment. Celotex, 477 U.S. at 322-323.

In Trieber, Complainant asserted that he was blacklisted from subsequent employment in retaliation for filing an earlier ERA whistleblower complaint. Respondent supported a motion for summary decision with affidavits showing that the relevant personnel of Complainant's former employer had no communication with subsequent employers or potential employers, and consequently the former could not have blacklisted Complainant, and affidavits from the subsequent employer showed that non of them had any knowledge of Complainant's activities while employed by the former employer, and did not discharge him because of any such activities. According to the Secretary, the ALJ was exemplary in providing sufficient time for Complainant to engage in discovery of evidence with which to oppose the summary judgment motions.

Complainant presented inferential evidence that the subsequent employer learned of his whistleblower activities because it fired him the same day that DOL informed the former employer of Complainant's earlier ERA complaint. The record, however, contained a telecopy of a message establishing that the decision to discharge Complainant had been made before DOL telephoned the prior employer. Thus, it was not possible that DOL's notice prompted some communication that led to the subsequent employer discharging Complainant. Although the only explanation for the firing was that Respondent had received "input" about Complainant, Complainant's speculation that the "input" was that he was a troublemaker, the Secretary found this pure conjecture, there being no evidence indicating that anyone at the former employer had any communication with anyone at the subsequent employer concerning Complainant. Further, there was evidence equally probable for the meaning of "input" that the person who made the decision to fire had consulted with two other managers who opined that Complainant was just not suited for the job (writing training manuals).

The fact that two other potential employers had shown disinterest after initially expressing interest in Complainant's qualifications could not defeat the motion for summary decision where, despite extensive opportunity for discovery, Complainant provided no affidavits or other evidence indicating communication between the former employer and the potential employers.

In sum, the Secretary agreed with the ALJ's conclusion that Complainant had submitted neither direct, circumstantial, nor inferential evidence of blacklisting or unlawful discharge, and had not met his burden of presenting affirmative evidence to defeat the properly supported motions for summary judgment.

VII C 1 Authority of ALJ to entertain motions for summary judgment

While the regulations at 29 C.F.R. Part 24 do not specifically provide for summary decision or dismissal on the issue of timeliness, the ALJ is authorized to entertain and rule on appropriately filed motions pursuant to the regulations at 29 C.F.R. Part 18. 29 C.F.R. §§ 18.1, 18.40, 1841. See, e.g., Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991), slip op. at 4. Eisner v. U.S. Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), slip op. at n.3 (rejected the complainant's contention that the ALJ exceeded his authority by dismissing the case).

VII C 1 Standards and burdens for granting summary judgment

For a discussion of the standards and burdens for the granting of summary judgment, see Trieber v. Tennessee Valley Authority, 87-ERA-25 (ALJ Nov. 1, 1989).

VII C 1 Complainant's opposition must set forth specific facts

The regulations at 29 C.F.R. §§ 18.40, 18.41 provide that a summary judgment is appropriate if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact. As Respondent's motion with supporting affidavits was filed in accordance with the provisions of section 18.40, the complainant's response in opposition to the motion "must set forth specific facts showing that there is a genuine issue of fact for the hearing. 29 C.F.R. § 18.40(c).

Smith v. Tennessee Valley Authority, 90-ERA-12 (Sec'y Apr. 30, 1992).

VII C 1 Response must set forth specific facts showing genuine issue of fact for hearing

29 C.F.R. § 18.40(c) states in part:

When a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of such pleadings. Such response must set forth specific facts showing that there is a genuine issue of fact for the hearing .

(emphasis added). Thus, where the Complainant had not presented pertinent factual information of a discriminatory act or acts during the limitations period for filing an ERA whistleblower complaint, the ALJ was correct in dismissing the Complainant's action on the basis of summary judgment. Billings v. Tennessee Valley Authority, 86-ERA-38 (Sec'y June 28, 1990).

VII C 1 No genuine issue of material fact

Where there is no genuine issue as to any material fact, a party moving for summary judgment in a whistleblower case is entitled to prevail as a matter of law.

Eisner v. U.S. Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), slip op. at 5.

VII C 1 Opportunity for discovery; nonmoving party unable to withstand motion for directed verdict

In Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991), aff'd sub nom., Howard v. United States Department of Labor, 959 F.2d 234 (6th Cir. 1992), the Secretary cited Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-1481 (6th Cir. 1989), for the proposition that the granting of summary judgment is appropriate where the parties have been afforded the opportunity for discovery and the non- moving party is unable to demonstrate that he will be able to produce sufficient evidence at trial to withstand a motion for directed verdict. Id. at 1478. In the instant case, the complainant was represented by counsel in the preparation of his complaint and throughout the proceedings before the ALJ, and was afforded an opportunity to conduct discovery. Nevertheless, he failed to amend or seek to amend his complaint, or to produce evidence that the respondent used a document prepared by its General Counsel and subsequently referred to in a local newspaper report against him.

VII C 1 Motion for summary decision

Marthin v. TAD Technical Services Corp. ,
94-WPC-1, 94-WPC-2, 94-WPC-3
(ALJ Feb. 11, 1994)

Defendant Dial's "suggestion of non-party status" is essentially a motion for summary judgment, which may be granted only if there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. In determining whether there exists any issue of material fact, the facts are to be construed in favor of the opposing party. The ALJ found an issue of material fact as to what the filing date of Complainant's complaint was and whether the complaint was put on hold until after the 30 day statutory limitation. There was also a factual issue with respect to whether the defendant's notice of this proceeding was sufficient under 29 C.F.R. §24.4(a). Thus, the motion for summary judgment was denied.

VII C 1 Motions to dismiss for lack of subject matter jurisdiction

The rules of practice and procedure applicable to administrative hearings under the environmental whistleblower provisions at 29 C.F.R. part 18 do not contain a provision regarding motions to dismiss. Nonetheless, section 18.1(a) requires that the Federal Rules of Civil Procedure by applied in situations not provided for by Part 18. The Federal Rules provide for motions to dismiss, including the ground of lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Rule 12(b)(1) motions include (1) "facial" attacks on the adjudicator's jurisdiction based solely on the allegations contained in the complaint, and (2) "factual" attacks in which facts outside the complaint are relied upon. The adjudicator is free to weigh evidence on the issue of subject matter jurisdiction on a Rule 12(b)(1) motion to satisfy itself that it has the power to hear the case.

The burden of establishing jurisdiction is on the plaintiff. Where the party seeking dismissal on grounds of lack of subject matter jurisdiction makes a factual attack and presents the trier of fact with affidavits or documents, the burden placed on the party defending jurisdiction is not onerous, and the trier of fact must consider facts in the light most favorable to the plaintiff.

In Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995), the Respondents made a Rule 12(b)(1) motion supported by affidavits and documents based on its contention that the Complainant was not an employee within the meaning of the environmental whistleblower provisions (CAA, TSCA, CERCLA, SDWA, SWDA, and FWPCA). The Complainant failed to support his allegations of jurisdiction with affidavits or documentary evidence, and the Secretary concluded that the evidence properly before the ALJ failed to make a prima facie case that the Complainant was an "employee".

VII C 1 Summary procedures to be used sparingly

In Richter v. Baldwin Associates, 84-ERA-9 to 10 (Sec'y Mar. 12, 1986) (order of remand), the Secretary noted:

The Supreme Court has cautioned that "summary procedures should be used sparingly . . . where motive and intent play lead roles. . . ." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 (1962).

* * *

This rule is particularly applicable to proceedings arising under whistleblower statutes like section 5851. The presence or absence of a retaliatory motive most often must be proved by circumstantial evidence and the inferences drawn therefrom. Proof that an employer was motivated by a reason violative of the statute lies largely in the hands of the employer and its personnel. In such cases, too, summary decision should be used sparingly.

VII C 1 Standard for Part 18 summary decision is the same as Fed. R. Civ. P. 56(e)

The standard for granting summary decision under 29 C.F.R. § 18.40 is the same as that for summary judgment under the analogous Fed. R. Civ. P. 56(e): the moving party must show that there is no material issue of fact and that he or she is entitled to prevail as a matter of law.

Flor v. United States Department of Energy, 93-TSC-1 (Sec'y Dec. 9, 1994).

VII C 1 Unsupported assertions of counsel cannot supply jurisdictional facts

Unsupported assertions of counsel cannot supply jurisdictional facts necessary to withstand a motion to dismiss for lack of subject matter jurisdiction. Reid v. ethodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995) (noting that if such information had been supported by the Complainant's affidavit, it might have been relevant to the jurisdictional issue).

VII C 1 Order required specifying facts that appear without substantial controversy

In Du Jardin v. Morrison Knudsen Corp., 93-TSC-3 (ALJ Nov. 29, 1993) (order denying respondent's motion for summary decision), Respondent filed a motion for summary decision, and Complainant asserted that there were several issues of material fact in dispute requiring an evidentiary hearing. After reviewing the record, the ALJ resolved one issue, found a second issue not to be material, and found a third issue to be material and in dispute. He then cited Federal Rule of Civil Procedure 56(d), stating that it

requires that when a case is not fully adjudicated on motion for summary judgment the court shall make an order specifying the facts that appear without substantial controversy and directing further proceedings, and upon trial the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

Thus, the ALJ ordered that the facts set forth in this order are deemed established and that the hearing shall be conducted accordingly.

VII C 1 Summary judgment on requisite element of prima facie case

Where the complainant failed to show that a genuine issue of material fact existed with respect to a requisite element of his prima facie case of retaliatory discharge, the Secretary approved the ALJ's granting of summary judgment. In Merriweather v. Tennessee Valley Authority, 91-ERA-55 (Sec'y Feb. 4, 1994), Complainant asserted that his discharge for the stated reason that he sexually harassed a female TVA employee was fabricated and that the reason for his discharge was protected safety complaints to the NRC. Complainant, however, admitted that he could not produce any evidence to support a finding that the TVA managers responsible for the discharge decision knew anything about his alleged protected activity.

The Secretary cited the following cases as precedent on granting summary decision:

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-1481 (6th Cir. 1989); Smith v. Tennessee Valley Authority, 90-ERA-12 (Sec'y Apr. 30, 1992); Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991), aff'd sub nom. Howard v. U.S. Dept. of Labor, 959 F.2d 234 (6th Cir. 1992) [table case; full decision reported at 1992 U.S. App. LEXIS 6570].

VII C 1 Error to decide disputed facts

In deciding a motion for summary decision, it is error for the ALJ to attempt to decide disputed facts rather than determining whether the parties disputed facts.

The purpose of the hearing on the motion for [summary] judgment is not to resolve factual issues. It is to determine whether there is any genuine issue of material fact in dispute, and if not, to render judgment in accordance with the law as applied to the established facts, otherwise to deny the motion for summary judgment and allow the action to proceed to a trial of disputed facts.

6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice § 56.11 (2d ed. 1981).

It is error for the ALJ to weigh the evidence of the complainants against that of the respondent.

Richter v. Baldwin Associates, 84-ERA-9 to 10 (Sec'y Mar. 12, 1986) (order of remand).

VII C 1 Nonmoving party's burden

In order to defeat a respondent's motion for summary decision, the complainant must set forth specific facts showing that there is a genuine issue of material fact for the hearing concerning equitable tolling. 29 C.F.R. § 18.40(c). [case citations omitted]. Tracy v. Consolidated Edison Co. of New York, Inc., 89-CAA-1 (Sec'y July 8, 1992).

VII C 1 Summary decision

Where the record raised no genuine issue of material fact so as to warrant a hearing in regard to whether the complainant made a timely request for a hearing following the preliminary determination of her complaint against her, a summary dismissal is proper. See 29 C.F.R. §§ 18.40, 18.41. 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).

VII C 1 Summary judgment on requisite element of prima facie case

The Secretary cited the following cases as precedent on granting summary decision:

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-1481 (6th Cir. 1989); Smith v. Tennessee Valley Authority, 90-ERA-12 (Sec'y Apr. 30, 1992); Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991), aff'd sub nom. Howard v. U.S. Dept. of Labor, 959 F.2d 234 (6th Cir. 1992) [table case; full decision reported at 1992 U.S. App. LEXIS 6570].

VII C 1 Inappropriateness of summary decision where a party refuses to answer relevant discovery requests

In Flor v. United States Department of Energy, 93-TSC-1 (Sec'y Dec. 9, 1994), the ALJ recommended dismissal of the complaint for failure to state a claim upon which relief can be granted.

The Secretary concluded that because the Respondent relied on the affidavit of one of the Complainant's supervisors in its motion to dismiss, the ALJ's ruling would be treated solely as a recommendation to grant summary decision pursuant to 29 C.F.R. § 18.40, 18.41 (1994); see also Eisner v. United States Environmental Protection Agency, 90-SWD-2 (Sec'y Dec. 8, 1992), slip op. at 4-5.

The ALJ concluded that there was no allegation by the Complainant sufficient to establish that she had engaged in protected activity. See Flor v. United States Dept. of Energy, 93-TSC-1 (ALJ Mar. 26, 1993), slip op. at 8-14. The Secretary, however, found that the complaint raised a number of genuine issues of material fact concerning whether the Complainant engaged in activities protected under the STAA and the environmental acts.

In his recommended order, the ALJ had relied in great part on the Complainant's failure to refute or discredit an affidavit of her immediate supervisor stating, in essence that was unaware of any protected activity by Complainant. The ALJ also found that compelling discovery was unwarranted because the Complainant should have personal knowledge of whether she engaged in protected activity. ALJ slip op. at 12-14.

The Secretary noted that a party opposing summary judgment under the analogous Fed. R. Civ. P. 56(e) "may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial. . . . Instead, the [party opposing summary judgment] must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-257 (1986). Because the Respondent supported its motion with the affidavit, it was incumbent upon the Complainant to set forth specific facts demonstrating the existence of a genuine issue for trial.

Nonetheless, the Secretary also noted that the Department's rules of practice provide that an ALJ may deny a motion for summary decision "whenever the moving party denies access to information by means of discovery to a party opposing the motion." 29 C.F.R. § 18.40(d). The Secretary noted that the Complainant submitted interrogatories and an associated request for production of documents regarding the identity of managers and supervisors to whom she voiced concerns about the safety of the planned use of a toxic chemical and the substitution of a different chemical in the performance of the project about which she voiced concerns. The Secretary concluded that answers to these interrogatories could possibly establish protected activity and management's knowledge of the protected activity. The Respondent had not answered the interrogatories and the Complainant had moved to compel responses. Thus, the Secretary concluded that the absence of answers to Flor's discovery requests may well have prevented her from obtaining evidence to counter the Respondent's affidavit.

Based on the existence of genuine issues of material fact, coupled with the Respondent's failure to answer discovery requests seeking information relevant to statements in the Respondent's affidavit, the Secretary concluded that summary judgment could not be granted to the Respondent.

VII C 1 Summary decision, generally

Varnadore v. Oak Ridge National Laboratory, 94-CAA-2, 94-CAA-3 (ALJ Apr. 6, 1994)

"Summary judgment may be rendered only when the court finds that the papers submitted in support of and in opposition to the motion reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Slip op. at 3, quoting Jack H. Friendenthal, et. al., Civil Procedure § 9.3, at 439 (1985)(cite omitted). An issue is material if the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action. A fact is material and precludes grant of summary judgment if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties and would necessarily affect application of appropriate principles of law to the rights and obligations of the parties.

On summary judgment the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, (1986). However, when the moving party has carried its burden under Fed. R. Civ. P. 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec. , 475 U.S. at 574, 106 S. Ct. at 1348. Thus, under the summary judgment rule, the non- moving party "may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." J. Marshall Trieber , 87-ERA-25 (Sec'y Sept. 9, 1993), (quoting Anderson v. Liberty Lobby , 477 U.S. 242, 256-57 (1986))

[Nuclear and Environmental Whistleblower Digest VII C 2]
SUMMARY DECISION; ALJ'S DISMISSAL BASED ON INFERENCE OF ADMISSIONS VACATED WHERE ALJ WAS UNAWARE THAT COMPLAINANT HAD IN FACT SERVED RESPONDENT WITH RESPONSES

Williams v. Dallas Independent School District , ARB No. 08-103, ALJ No. 2008-TSC-1 (ARB Sept. 30, 2010), the Respondent served a request for admissions on the Complainant. Later, the Respondent filed a motion for summary decision arguing that because the Complainant failed to answer its requests for admission, it should be deemed admitted that the Respondent did not retaliate against the Complainant for protected activity. The ALJ issued an order to show cause requiring the Complainant to provide justification for why the Respondent's motion for summary decision should not be granted. The Complainant requested a continuance and additional time to answer the requests for admission and argued that the Respondent had not responded to his requests for production of evidence. The Complainant also served his responses to the requests for admission on the Respondent, but did not file them with the ALJ. The Complainant then filed an affidavit in response to the order to show cause and requested a continuance to complete discovery. The ALJ issued a order giving the parties additional time to complete discovery and all responses in support or defense of the pending motion for summary decision. After this deadline had expired, and not knowing that the Complainant had responded to the requests for admission, the ALJ issued a decision granting summary decision, deeming all of the Respondent's requested admissions to be admitted.

On appeal, the ARB vacated the ALJ's decision and remanded for the ALJ's reconsideration of the motion for summary decision in light of the fact that, unbeknownst to the ALJ, the Complainant had actually responded to the requests for admission prior to the ALJ's decision. The ARB noted that the regulation at 29 C.F.R. § 18.20(g) generally does not require parties to file their responses to admissions requests with the ALJ unless expressly ordered to do so, and thus the Complainant had acted in compliance with the ALJ's directive to make the responses. The ARB noted that no party alerted the ALJ through motion or otherwise before the appeal was filed that the Complainant had, in fact, served his responses.

VII C 2
Pro se complainant (summary judgment)

Although a pro se complainant cannot be held to the same standard for pleadings as if he or she were represented by legal counsel, a complainant must allege a set of facts which, if proven, could support his/her claim of entitlement to relief.

Grizzard v. Tennessee Valley Auth., 90-ERA-52 (Sec'y Sept. 26, 1991).

[Nuclear and Environmental Whistleblower Digest VII C 2]
PRO SE LITIGANT; LESS LATITUDE FOR PROCEDURAL FAILURES WHERE THE LITIGANT IS EXPERIENCED AT WHISTLEBLOWER LITIGATION

In Hasan v. Enercon Services, Inc. , ARB No. 04-045, ALJ No. 2003-ERA-31 (ARB May 18, 2005), the ARB affirmed summary judgment against the Complainant where he failed to set forth specific facts on an issue upon which he would bear the ultimate burden of proof at trial in response to a motion for summary judgment supported by affidavits from managers swearing that they had no knowledge of the Complainant's previous whistleblower activities when they made the decision not to hire him. In a footnote, the ARB noted that although the Complainant was pro se , he was experienced in litigating whistleblower cases and had repeatedly been instructed as to the elements of a whistleblower case by OALJ, the ARB and the federal courts. Implicit in this footnote is the notion that a Complainant is not afforded as much latitude for procedural failures where, despite pro se status, he is well experienced with DOL whistleblower adjudications.

To the same effect Hasan v. Southern Co. , ARB No. 04-040, ALJ No. 2003-ERA-32 (ARB Mar. 29, 2005).

[Nuclear and Environmental Whistleblower Digest VII C 2]
SUMMARY DECISION; REQUIREMENT THAT COURT PROVIDE NOTICE TO PRO SE LITIGANT OF NEED TO FILE RESPONSIVE MATERIALS AND CONSEQUENCES OF DEFAULT

In Saporito v. Central Locating Service, Ltd. , 2004-CAA-13 (ALJ Oct. 6, 2004), the ALJ granted summary decision in favor of the Respondent. In a footnote, the ALJ observed:

The Eleventh Circuit, under whose jurisdiction this case falls, has held that: "a motion for summary judgment should be granted against a litigant without counsel only if the court gives clear notice of the need to file affidavits or other responsive materials and of the consequences of default." United States v. One Colt Python, .357 Cal. Revolver, 845 F.2d 287, 289 (11th Cir. 1992). This court has fulfilled this requirement through its Pre-Hearing Order # 14 (September 3, 2004), in which this Court informed the pro se Complainant of his right to file counter-affidavits or other responsive material. Also, this Court continued proceedings in this case until further notice, thus allowing the pro se Complainant sufficient opportunity to respond to Respondents' Motion.

Slip op. at n.2.

VII C 2 Summary judgment

Pro se pleading cannot be dismissed unless it is beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Therefore, where a Complainant sufficiently alleges facts, which if proven true, could constitute an act of discrimination in violation of the ERA, the case will not be dismissed based on the inadequacy of the complaint. Jain v. Sacramento Mun. Util. Dist., 89-ERA-39 (Sec'y Nov. 21, 1991).

VII C 2 Must allege set of facts which, if proven, could support relief

Although a pro se complainant cannot be held to the same standard for pleadings as if he were represented by legal counsel, the complainant must allege a set of facts which, if proven, could support his claim of entitlement to relief.

Doyle v. Bartlett Nuclear Services, 89-ERA-19 (Sec'y May 22, 1990); Riden v. Tennessee Valley Authority, 89-ERA-49 (Sec'y July 18, 1990).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Amendment of complaint

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

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

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

Filing of whistleblower complaint with OSHA was itself protected activity

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

ARB erred in first decision in dismissing under summary decision standard

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

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

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

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

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

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

Concurring and dissenting opinion - there is no pleading requirement

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

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

[Nuclear and Environmental Digest VII C 3]
MOTION TO DISMISS; FAILURE TO STATE A CLAIM FOR RELIEF; SUMMARY DECISION

Failure to state claim

In the instant case, the ARB first affirmed the ALJ's determination that the Federal Government has not waived sovereign immunity under the ERA or TSCA. To set the context, the ARB then reviewed the purposes of the remaining acts cited in the complaint: the CAA, SDWA and CERCLA. The ARB stated that the "complaint must indicate that he apprised EPA or the 'appropriate enforcement authorities' he refers to in his complaint of a violation of the CAA (such as the potential emission of a pollutant into the ambient air), SDWA (the contamination of drinking water), or CERCLA (the cleanup of hazardous waste sites)." USDOL/OALJ Reporter at 6 (footnote omitted). The ARB observed that the Supreme Court had stated in Ashcroft v. Iqbal , 556 US. __, 129 S.Ct. 1937, 1949 (2009), that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. The Complainant's accusation that EPA discriminated against him was a legal conclusion. The ARB found that it was proper to interpret the complaint in the light of letter to the EPA Administrator referenced in the complaint. The ARB found that the complaint referenced occupational hazards that were not protected activity under the environmental acts, and personnel decisions which standing alone were not protected activity under those laws.

The ARB reviewed the complaint as supplemented by the Complainant's letter to the EPA Administrator and concluded that it failed to state a claim for relief under the CAA, SDWA or CERLCA.

Summary Decision

The dissent

One member of the Board forcefully dissented. The dissenter stated that "the ALJ's requirement of specificity imposes upon a claimant seeking whistleblower protection under the environmental acts a heightened pleading standard that has been expressly rejected by the Supreme Court in employment discrimination cases. See Swierkeiewicz v. Sorema, N.A. , 534 U.S. 506, 122 S.Ct. 992 (2002)." The dissenter found the Complainant's allegations of whistleblower protected activity to be facially plausible, and therefore sufficient to overcome a 12(b)(6) motion. The dissenter also stated that he rejected the notion that the ARB on appeal could transform the ALJ's 12(b)(6) disposition into a ruling as a matter of summary judgment. The dissent noted that the ALJ had expressly rejected consideration of the motion to dismiss under the summary judgment standard.

VII C 3 Application of Fed. R. Civ. P. 12(b)(6); novel or extreme theory of liability

Dismissal for failure to state a claim is disfavored, particularly in cases which present a novel or extreme theory of liability, since it is important that new legal theories be explored. Electrical Constr. & Maintenance Co., Inc. v. aeda Pac. Corp., 764 F.2d 619, 623 (9th Cir. 1985). Thus, where the complainant presented a novel type of adverse action in his TSC/SWD whistleblower complaint involving failure to provide information and services (the respondent had refused to tell the complainant the identity of spilled substances and failed to extend to him the same safety and health advice and services offered other employees involved in the spill clean up), and there was no impediment to recovery on the face of the complaint, the complainant was entitled to a hearing to adduce proof tending to show the existence of the discriminatory denial of a term or privilege of employment.

Helmstetter v. Pacific Gas & Electric Co., 91- TSC-1 (Sec'y Jan. 13, 1993) (case arising in the Ninth Circuit) (Secretary declined to adopt the ALJ's recommendation of a 12(b)(6) dismissal, and remanded for an evidentiary hearing and recommended decision on the merits).

[Nuclear & Environmental Whistleblower Digest VII C 3]
USE OF FRCP 12(b)(6) STANDARD IN DETERMINING WHETHER COMPLAINANT HAD MADE A SHOWING OF A PRIMA FACIE CASE

In Hasan v. Stone & Webster Engineers & Constructors, Inc. , ARB No. 03 058, ALJ No. 2000 ERA 10 (ARB June 27, 2003), the ARB adopted the ALJ's recommendation to dismiss for failure to state a claim upon which relief may be granted under FRCP 12(b)(6), finding that the ALJ's decision fairly related the facts and the proper legal framework. In the ALJ's decision, the standards set out in the FRCP 12(b)(6) were used in considering whether dismissal was appropriate. The ALJ noted that "failure to allege a prima facie case is grounds for immediate dismissal. See Lovermi v. Bell South Mobility, Inc. , 962 F. Supp. 136, 139 (S.D. Fla. 1997); Briggs v. Sterner , 529 F. Supp. 1155, 1164 (S.D. Iowa 1981)." Hasan v. Stone & Webster Engineers & Constructors, Inc. , 2000 ERA 10 (ALJ Feb. 6, 2003). Complainant's allegation was that Respondent failed to rehire him because of protected activity. The ALJ applied the prima facie case analysis for a refusal to hire case, and found:

Complainant's allegation of reporting safety concerns to the NRC satisfied the protected activity element of a prima facie case
Complainant's stating in his application letter that he was a whistleblower was sufficient to raise an inference that Respondent knew about his protected activity.
Complainant applied for the job in response to an Internet advertisement and was not hired, thus meeting those elements of a refusal to hire case, but failed to allege that the position remained open and Respondent continued to seek applications from persons of Complainant's qualifications. Thus, Complainant failed to establish this element of a prima facie case.
Complainant failed make a prima facie showing to raise a reasonable inference that the protected activity was the likely reason for the adverse action.

[Nuclear & Environmental Whistleblower Digest VII C 3]
DISMISSAL FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED; GATEKEEPING FUNCTION OF PRIMA FACIE CASE IN ERA CASES

In Hasan v. Stone & Webster Engineers & Constructors, Inc. , ARB No. 03 058, ALJ No. 2000 ERA 10 (ARB June 27, 2003), Complainant contended that the ALJ erred in granting Respondent's FRCP 12(b)(6) Motion to Dismiss because his ERA complaint does not have to allege specific facts establishing a prima facie case of discrimination under Swierkiewicz v. Sorema , 534 U.S. 506 (2002). The ARB wrote:

Like the ALJ, we reject this argument. The Swierkiewicz holding is confined to the application of FRCP 8(a)(2) to Title VII (42 U.S.C.A. § 2000e et seq .) and Age Discrimination In Employment Act (29 U.S.C.A. § 621 et seq .) cases. Furthermore, we agree with Stone and Webster that Congress expressly made the prima facie standard a pleading requirement for ERA complainants. See Brief of Respondent at 9; 42 U.S.C.A. § 5851(b)(3)(A) ("The Secretary shall dismiss a complaint . . . unless the complainant has made a prima facie showing . . . ."). See also Trimmer v. U.S. Department of Labor , 174 F. 3d 1098, 1101(10th Cir. 1999) (explaining that Congress was concerned about stemming frivolous complaints and consequently amended § 5851 to include a gatekeeping function whereby the Secretary cannot investigate an ERA complaint unless the complainant has made a prima facie showing).

Slip op. at n.4.

[Nuclear & Environmental Whistleblower Digest VII C 3]
MOTION FOR DISMISSAL FOR FAILURE TO STATE A CAUSE OF ACTION; MERE SPECULATION THAT NAMED RESPONDENT MAY HAVE A DISCRIMINATORY MOTIVE IS INSUFFICIENT TO WITHSTAND

In Gass v. U.S. Dept. of Energy , 2002 CAA 2 (ALJ Nov. 20, 2002), Complainant alleged that she had been retaliated against by Lockheed Martin Energy Systems (LMES) for protected activity, and had pursued a remedy through the Department of Energy's Office of the Inspector General. She filed a whistleblower complaint with DOL. During the adjudication of this complaint, she filed a FOIA request with DOE seeking documents related to DOE IG's inquiry on her complaint. DOE informed Complainant that the requested information had been destroyed, and Complainant filed the instant whistleblower complaint alleging that the destruction of the documents was a violation of the environmental whistleblower laws. Complainant named LMES among others as a Respondent. In consideration of a FRCP 12(b)(b) failure to state a claim motion, Complainant merely asserted that LMES' "knowledge of and involvement in DOE IG's evidence destruction is a question of fact for trial." The ALJ observed that LMES was presently engaged in other litigation with Complainant and might possibly have benefitted from the destruction of the evidence, but concluded that in the absence of a specific allegation that LMES actually did anything concerning evidence in DOE's possession, a whistleblower complaint against LMES could not be supported.

[Nuclear & Environmental Whistleblower Digest VII C 3]
FAILURE TO STATE A CLAIM; RELATIONSHIP BETWEEN ERA GATEKEEPING FUNCTION AND FEDERAL RULE 8(a)

In Hasan v. Stone & Webster Engineers & Constructors, Inc. , 2000 ERA 10 (ALJ Feb. 6, 2003), Complainant argued that despite the failure to allege a prima facie case of discrimination, his complaint should not be dismissed for failure to state a claim upon which relief can be granted, based on the United States Supreme Court decision in Swierkiewicz v. Soreman , 534 US 506, 122 S Ct 992, 152 L Ed 2d 1 (2002). The ALJ, however, found that Swierkiewicz was inapposite because

The decision in Swierkiewicz states the pleading requirement in employment discrimination cases brought under the Federal Rules of Civil Procedure, such as those involving Title VII and the ADEA. Unlike the Petitioner in Swierkiewicz , the instant case involves a claim brought under the Energy Reorganization Act's whistleblower provision. In 1992, Congress amended the ERA to include a gatekeeping function, "which prohibits the Secretary from investigating a complaint unless the complainant establishes a prima facie case that his protected behavior was a contributing factor in the unfavorable personnel action alleged in the complaint." Hasan v. U.S. Dep't. of Labor , 298 F.3d 914, 917 (10th Cir. 2002)(citing 42 U.S.C. § 5851(b)(3)(A)), cert. denied , ____ U.S. ____ (2003). Here, the Complainant has failed to meet his burden. Moreover, the Complainant has a history of applying for jobs, then seeking broad discovery when he receives no response. However, at no point does Mr. Hasan mention that the Seventh, Tenth and Eleventh Circuits recently affirmed dismissals of several of his ERA complaints that were substantially the same as the complaint at issue here.

Slip op. at 7 (footnotes omitted).

[Nuclear & Environmental Digest VII C 3]
MOTION FOR SUMMARY JUDGMENT; "FACTUAL" 12(b)(1) MOTION

In Williams v. Lockheed Martin Energy Systems, Inc. , ARB No. 98-059, ALJ No. 1995-CAA-10 (ARB Jan. 31, 2001), the ARB affirmed the ALJ's dismissal under Fed. R. Civ. P. 12(b)(1) where Respondent Department of Energy presented affidavits and a contract in support of its motion to dismiss on theory that it did not have an employer-employee relationship with Complainant, and Complainant failed to support his position with documents or affidavits. The Board made it clear that this was not a ruling that DOE is not a covered employer, but only that Complainant failed to support its claim that DOE was a "joint employer" when presented with the affidavit/document based on a 12 (b)(1) motion.

[Nuclear & Environmental Digest VII C 3]
LAW OF THE CASE; DISTINCTION BETWEEN STATING A CLAIM UNDER THE CAA, AND FINDING OF PROTECTED ACTIVITY UNDER THE CAA

In Stephenson v. National Aeronautics & Space Administration , 94-TSC-5 (Sec'y July 3, 1995), the Secretary of Labor in considering whether the ALJ had properly dismissed the complaint for failure to state a claim under the Clean Air Act wrote:

[T]he complaint concerned astronauts being exposed, within the space capsule, to ethylene oxide and freon. On first impression the complaint appears concerned with occupational, rather than public, safety and health. Ethylene oxide and freon, however, are precisely the types of substances reasonably perceived as subject to CAA regulation, which is sufficient in these circumstances to bring the complaint within the purview of that Act. Minard v. Nerco Delamar Co. , Case No. 92-SWD-1, Sec. Rem. Ord., Jan. 25, 1995, slip op. at 4-7. I find that Complainant has stated a claim under the CAA.

After several years of further development of the case involving a number of appeals and a reassignment of the case because of the transfer of the original presiding ALJ to another agency, the newly assigned ALJ issued a recommended decision in which he concluded that this ruling by the Secretary could not be re-litigated under the doctrine of collateral estoppel and that the Secretary had decided that Complainant has stated a claim under the Clean Air Act and that ruling had become the law of the case. Stephenson v. National Aeronautics & Space Administration , 94-TSC-5 (ALJ Nov. 13, 1997) (in a footnote the ALJ questioned whether Congress intended CAA to regulate negligible amounts of ethylene oxide released into an environment).

In Stephenson v. NASA , ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB July 18, 2000), the ARB issued a final decision in the matter. The ARB characterized the ALJ's ruling as perplexing, first finding that the doctrine of collateral estoppel did not apply because this issue had not been fully and fairly litigated at the time that the Secretary issued the above- quoted ruling, which the ARB held was simply a ruling that the complaint was sufficient to survive a motion to dismiss for failure to state a claim. The ARB held that the doctrine of law of the case did not apply for similar reasons that neither the Secretary nor the Board had previously held in the case that Complainant had engaged in protected activity. The ARB went on to hold based on the record that there was not even a remote possibility of the escape of any significant amount of ethylene oxide or freon into the ambient air, and therefore Complainant's concerns about those substances were not grounded in conditions constituting reasonably perceived violations of the CAA, and therefore not protected activity.

[Nuclear & Environmental Digest VII C 3]
PRIMA FACIE CASE; FAILURE TO PLEAD VIABLE CLAIM

In Hasan v. Commonwealth Edison Co. , 2000-ERA-1 (ALJ Jan. 10, 2000), the ALJ granted summary judgment against Complainant where Complainant's pleadings failed to state a claim warranting a formal hearing. Although the ALJ recognized that pro se litigants are held to less stringent standards in regard to their pleadings, he also found that they nonetheless must meet minimal pleading requirements. See 29 C.F.R. § 24.3(c) (requiring a complaint to "include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violation").

The ALJ permitted Complainant to file a complaint setting out in detail the nature of the alleged violations and relief sought, but Complainant's filing essentially only alleged that he had applied for a job a number of times with Respondent. Moreover, the complaint did not identify any specific job opening for which he sought employment -- a requisite element of a claim for discriminatory refusal of failure to rehire case. See Samodurov v. Niagara Mohawk Power Corp ., 1989-ERA-20 (Sec'y Nov. 16, 1993).

The ALJ denied Complainant's motion to amend his complaint to cover the period from the filing of his complaint to the scheduled date of the hearing where Complaint did not allege any specific facts or violations by Respondents which constitute a viable claim.

The ALJ noted Complainant's argument that Respondents engage in systematic exclusion of Complainant from consideration for employment, which by its very nature is a continuing violation. The ALJ held that "[e]ven continuing violations must be alleged in detail and cannot be based on mere conjecture or speculation." Because there was "no direct, circumstantial or inferential evidence to corroborate Complainant's continuing violation theory" the ALJ granted Respondents' motions to dismiss.

[Nuclear & Environmental Digest VII C 3]
FAILURE TO ESTABLISH PRIMA FACIE CASE; COMPLAINANT WALKED OUT OF HEARING

In Agosto v. Consolidated Edison Co. of New York , 1997-ERA-54 (ALJ July 28, 1998), Complainant, who had become frustrated in questioning witnesses because of an evidentiary ruling by the ALJ that factual issues decided in a prior related hearing would not be relitigated in the instant proceeding, walked out of the hearing with the obvious intent of not returning. The ALJ ruled that Complainant had rested, and Respondent moved for a recommended order of dismissal based on failure of Complainant to establish a prima facie case. The ALJ granted the motion, and memorialized his ruling in a subsequent written decision.

FAILURE TO STATE A CLAIM; BROAD CONSTRUCTION OF PROTECTED ACTIVITY; INSPECTOR GENERAL EMPLOYEE'S DISPUTE WITH SUPERVISORS; EXISTENCE OF OTHER POTENTIAL REMEDIES DOES NOT DEFEAT CAA CLAIM
[N/E Digest VII C 3, XII D 13 and XX B 4]

In Tyndall v. U.S. Environmental Protection Agency , 93-CAA-6 and 95-CAA-5 (ARB June 14, 1996), the Complainant was assigned to investigate an EPA employee regarding alleged improprieties in the awarding and administration of a computer modeling contract to study the effects of acid rain. The Complainant alleged in his CAA complaint that his supervisors gave him directions that constituted interference in the investigation, and that the EPA Inspector General had disregarded the Complainant's recusal from the investigation and forced him to lead the investigation. The ALJ concluded that the CAA whistleblower complaint did not state allegations related to the environmental safety or violations of the CAA, and recommended dismissal of the complaint. The Board observed that this was analogous to a dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted.

The Board, citing Jenkins v. U.S. Environmental Protection Agency , 92-CAA-6 (Sec'y May 18, 1994), noted that the CAA's employee protection provision is construed broadly, and that the Complainant's allegations of protected activity met that broad construction and may constitute protected activity. For instance, the Complainant could establish that the alleged interference with the investigation would lead the EPA to rely on acid rain studies that understate the harmful effects of acid rain, leading to less than appropriate regulation. The Board also found that the Complainant stated the other elements of a prima facie case, and therefore remanded for a hearing.

The Board noted that the Complainant also complained that interference by his EPA managers may have violated the civil service laws or the Inspector General Act. The Board stated that "[t]he allegation of a violation of other statutes does not defeat the claim under the employee protection provision [of the CAA]." Slip op. at 9.

VII C 3 Adequacy of unsworn statement of a fellow employee in response to a Rule 12(b)(6) motion

In Studer v. Flowers Baking Company of Tennessee, Inc., 93-CAA-11 (Sec'y June 19, 1995), the Complainant asserted that the Respondent chose a less-senior employee to attend a training session. The ALJ found an adequate allegation of protected activity, but concluded that the Complainant had not alleged that he had been treated in a discriminatory fashion -- that is, that he had been treated any differently than other employees. The ALJ issued an order to show cause, and finding the response inadequate to allege any discriminatory activity, recommended summary dismissal of the complaint. Studer v. Flowers Baking Company of Tennessee, Inc., 93-CAA-11 (ALJ Sept. 16, 1993).

The Secretary found the ALJ's recommendation to be analogous to a dismissal for failure to state a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6). The Secretary noted that in considering a dismissal for failure to state a claim, all reasonable inferences are made in favor of the non-moving party especially when the complaint was filed pro se , and that dismissal should be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Slip op. at 2, quoting Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980).

The Secretary found that the Complainant sufficiently alleged protected activity, and that the nonselection for training was a sufficient allegation of protected activity. In response to the ALJ's order to show cause, Complainant had attached an unsworn statement of a fellow employee, declaring that he believed that another employee was sent to the training instead of the Complainant in retaliation over the protected activity. The Secretary found that, assuming the truth of allegations, the Complainant had alleged facts that, if proven, would constitute a violation of the CAA's employee protection provision.

VII C 3 Complainant need only state elements of prima facie case to withstand motion to dismiss

A complaint need only allege the elements of a prima facie case in order to withstand a motion to dismiss based on failure to state a cause of action. Whether the burden of proof on each element can be satisfied depends on the evaluation of evidence presented at the hearing. See Bassett v. Niagara ohawk Power Co., 86-ERA-2 (Sec'y July 9, 1986).

VII C 3 Application of Fed. R. Civ. P. 12(b)(6)

Dismissal under Fed. R. Civ. P. 12(b)(6) is reserved for those cases in which the allegations of the complaint itself demonstrate that the plaintiff does not have a valid claim. Sinaloa Lake Owners Ass'n v. City of Simi Valley, 864 F.2d 1475, 1478 (9th Cir. 1989); see Doyle v. Bartlett Nuclear Services, 89-ERA-18 (Sec'y May 22, 1990), slip op. at 5, aff'd, 949 F.2d 1161 (11th Cir. 1991) (dismissal proper where complainant does not allege any act of discrimination by the named respondent). Thus, where the face of the complainant's complaint reveals no impediment to recovery, a 12(b)(6) motion should be denied.

Helmstetter v. Pacific Gas & Electric Co., 91- TSC-1 (Sec'y Jan. 13, 1993) (case arising in the Ninth Circuit).

VII C 3 Applicability and application of Fed. R. Civ. P. 12(b)(6) to whistleblower proceedings

Neither the rules governing hearings in whistleblower cases, 29 C.F.R. Part 24, nor the rules governing hearings before ALJs, 29 C.F.R. Part 18, provide for dismissal of a complaint for failure to state a claim upon which relief may be granted. Therefore, the analogous Federal Rule of Civil Procedure governs a motion to dismiss based on failure to state a cause of action under a federal employee protection provision. See 29 C.F.R. § 18.1(a).

In considering dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted, all reasonable inferences are made in favor of the non-moving party especially when, as here, the complaint was filed pro se. Estelle v. Gamble, 429 U.S. 519, 520 (1972); Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980). Therefore, in ruling on such a motion in whistleblower cases, a pro se complainant is not held to the same standard for pleadings as if he were represented by legal counsel. Doyle v. Barlett Nuclear Services, 89-ERA-18 (Sec'y May 22, 1990), slip op. at 5 n.3, aff'd, 949 F.2d 1161 (11th Cir. 1991). A motion to dismiss should be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Gillespie, 629 F.2d at 640. A whistleblower complainant need allege only a set of facts which, if proven, could support his claim of entitlement to relief. Doyle, slip op. at 5 n.3.

Helmstetter v. Pacific Gas & Electric Co., 91- TSC-1 (Sec'y Jan. 13, 1993) (case arising in the Ninth Circuit).

VII.C.3. Additional terms must be submitted

In Bixby v. State of New Mexico, Office of the Commissioner of Public Lands, 94-TSC-1 (Sec'y Aug. 16, 1994) (order to submit settlement agreement), the Secretary concluded that an additional agreement containing further terms of settlement may exist. He ruled that the case could not be dismissed on the basis of a settlement unless all the terms of the settlement have been reviewed and the Secretary has found them to be fair, adequate, and reasonable. Accordingly, he ordered the parties to submit a copy of the additional terms of settlement for review. If there are no additional settlement terms, the parties may submit a declaration to that effect pursuant to 28 U.S.C. § 1746 (1988).

Upon submission of the agreement, the Secretary reviewed the agreement, and dismissed the complaint with prejudice. Bixby v. State of New Mexico, Office of the Commissioner of Public Lands, 94-TSC-1 (Sec'y Sept. 22, 1994).

VII D 1 Hearing; location of

Section 24.5(c) contemplates that a hearing site within 75 miles of Complainant's residence will not always be appropriate. Since the regulation pertains to convenience, not jurisdiction, and is akin to the concept of venue, any "right" conferred by the regulation may be waived. Accordingly, where the alleged discrimination occurred many miles from Complainant's residence, the ALJ did not err in suggesting a hearing location in the vicinity of the place where the discrimination occurred on the basis of convenience to Complainant's witnesses. See 29 C.F.R. § 24.1(b); see also 29 C.F.R. § 18.27(c).

Ridings v. Commonwealth Edison, 88-ERA-27 (Sec'y Sept. 20, 1991) (order of dismissal).

[Nuclear & Environmental Whistleblower Digest VII D 1]
DATE OF HEARING; ACCOMMODATION OF RESPONDENTS' COUNSEL'S SCHEDULE

In Turpin v. Lockheed Martin Corp. , ARB No. 02 101, ALJ No. 2001 ERA 37 (ARB Jan. 29, 2004), Complainant argued that the ALJ erred by deferring the scheduling of the hearing to accommodate Respondent's counsel's schedule, thereby denying Complainant a speedy trial. The ALJ had, in a November 2001 telephonic conference, scheduled the hearing for March 2002 because of Respondents' counsel's schedule. The ARB found that Complainant had failed to establish that this constituted error by the ALJ.

[Nuclear & Environmental Digest VII D 1]
HEARING LCOATION; REQUIREMENT OF SECTION 24.6(c) THAT HEARING, WHERE POSSIBLE, BE HELD WITHIN 75 MILES OF COMPLAINANT'S RESIDENCE DOES NOT APPLY TO A PRE-HEARING CONFERENCE

In Williams v. Lockheed Martin Corp. , ARB Nos. 99-054 and 99-064, ALJ Nos. 1998-ERA-40 and 42 (ARB Sept. 29, 2000), the ARB ruled that 29 C.F.R. § 24.6(c), which mandates that the hearing, where possible, be held within 75 miles of the complainant's residence, does not apply to a pre-hearing conference requested by Complainant's counsel.

[Nuclear & Environmental Digest VII D 1]
LOCATION OF HEARING

In Allen v. Williams Power Co. , 1998-ERA-36 (ALJ Aug. 17, 1998), the ALJ concluded that the hearing should be conducted within 75 miles of Complainant's residence in Michigan. When Complainant originally indicated that he wanted the hearing in ichigan, Respondent filed a response maintaining, inter alia , that it knew of no potential witnesses from the Michigan area, and that all of its potential witnesses would be in the Vermont-New Hampshire-Massachusetts area. Allen v. Williams Power Co. , 1998-ERA-36 (ALJ Aug. 3, 1998). The ALJ noted in an earlier order that the regulation at 29 C.F.R. § 24.6(c) provides that the hearing shall, where possible, be held at a place within 75 miles of the complainant's residence, and that the regulation at 29 C.F.R. § 18.27(c) provides that due regard shall be given to the convenience of the parties and the witnesses. The ALJ also noted that Secretary of Labor decisions indicate that the purpose of the regulations is to accommodate a complainant and facilitate the proceeding while recognizing that a hearing near the complainant's residence will not always be appropriate. Id . Thus, the ALJ directed that the parties identify by name and address the witnesses they intended to call. Id.

Upon obtaining the responses, the ALJ noted that the witnesses were scattered (Vermont, Pennsylvania, North Carolina, Mississippi, New York, Illinois and one undisclosed location) and would have to travel no matter where the hearing was conducted. In the absence of specific factors favoring New England as a hearing location, the ALJ found that accommodation of Complainant was appropriate.

The statute and regulations do contain provisions concerning the time within which the Department of Labor's investigation and adjudication of ERA complaints should be completed.... Such provisions have been construed as directory, rather than mandatory or jurisdictional, however, ... and should not interfere with the full and fair presentation of the case by the parties, in accordance with the Administrative Procedure Act, 5 U.S.C. §§ 554(c), (d), 556(d). Moreover, the full and fair presentation of the case by the parties is crucial to serving the ERA purpose of protecting employees from retaliation for acting on their safety concerns.... The importance of safety in the handling of radioactive materials cannot be gainsaid; there is a crucial public interest at stake when issues of non-compliance with safety regulations arise....

* * *

The time constraints placed on the proceedings before the ALJ directly interfered with the parties' opportunity for a full and fair presentation of the case at hearing. In conducting the hearing, the ALJ erred in repeatedly limiting testimony and refusing to admit documentary evidence on relevancy grounds.

VII D 1 Change of hearing location

In Wilkinson v. Texas Utilities, 92-ERA-16 (ALJ July 24, 1992) (Order Denying Motion to Change the Location of Trial), the administrative law judge refused to grant the complainant's motion to change the location of the hearing from Texas to Washington, D.C., where the complainant, the witnesses, and counsel for the respondent all reside in Texas, and where there was no objective proof to support the complainant's lay representatives assertions that his life would be jeopardized if he were to return to Texas. The ALJ noted that this was not the first time the lay representative had alleged his fear without proof.

VII D 2 ALJ's discretion to receive exhibits despite noncompliance with prehearing order

In Johnson v. Old Dominion Security, 86-CAA-3, 4 and 5 (Sec'y May 29, 1991), the ALJ did not abuse his discretion by receiving exhibits offered by both parties despite prehearing order compliance by neither.

[Nuclear and Environmental Whistleblower Digest VII D 2]
DEPOSITION TESTIMONY OF COMPLAINANT MOVED INTO EVIDENCE AT CONCLUSION OF RESPONDENT'S CASE; ALJ MAY REQUIRE DESIGNATION OF RELEVANT PORTIONS

In Bertacchi v. City of Columbus , 2003-WPC-11 (ALJ Aug. 26, 2005), the Respondent moved for admission of the Complainant's deposition testimony at the close of its case. The Complainant raised a number of objections, essentially based on fairness. The Respondent contended, essentially, that the deposition transcription was testimony that can be tacked onto that taken during the hearing. The ALJ found neither position convincing. He found that much of the deposition contained evidence that was immaterial, irrelevant, or unduly repetitious, and that it was the parties' obligation to designate those portions that they deemed necessary. Zimmerman v. Safeway Stores, Inc. , 410 F.2d 1041 (D.C. Cir. 1969) (stating that in cases concerning the admissibility of deposition transcripts of adverse parties, even courts that are bound by the federal rules of evidence "retain[] the discretion to exclude repetitious matter and to require counsel to identify" the parts deemed relevant). The ALJ, therefore, concluded that only those portions designated by the parties would be admitted into the record.

[Nuclear & Environmental Whistleblower Digest VII D 2]
HARMLESS ERROR; FAILURE TO ADMIT EVIDENCE THAT DOES NOT AFFECT OUTCOME

Failing to admit documents that do not affect the outcome of the case is harmless error, if error at all. Williams v. Mason & Hanger Corp. , ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002).

[Nuclear & Environmental Digest VII D 2]
ADMISSION OF EVIDENCE; IRRELEVANT DOCUMENTS

In Johnson v. Oak Ridge Operations Office , ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30, 1999), Complainants' requested to supplement the record before the ARB, which was considering on review the issue of whether Complainants' had stated a claim under various whistleblower provisions. The documents submitted included a variety of materials such as a GAO report on nuclear employee safety concerns; DOE memos and reports; a letter from the Secretary of Energy to the Chairman of a House oversight committee; various newspaper articles involving reported harassment of nuclear couriers; a law review article questioning ALJ independence; and a law review on human experimentation at the Hanford nuclear site. The ARB found these documents to be irrelevant and declined to reopen the record for their admission. Complainants also submitted an autopsy report on the presiding ALJ, who died several months after issuing the recommended decision, ostensibly to demonstrate that the ALJ was in some way unbalanced and therefore her rulings tainted. The ARB, finding nothing in the record to suggest impropriety by the ALJ, excluded the autopsy report and Complainants' counsel's submission letter from the record, observing that the ALJ's ruling stand or fall on their merits, and that counsel should have known that the autopsy report was completely irrelevant.

[Nuclear & Environmental Digest VII D 2]
TESTIMONY BY TELEPHONE

In Allen v. Williams Power Co. , 1998-ERA-36 (ALJ Aug. 17, 1998), the ALJ denied Respondent's request to introduce the testimony of witnesses via telephone to avoid the cost of transporting witnesses scattered throughout different states. The ALJ noted the general rule that deposition testimony in whistleblower hearing is disfavored, and the exceptions, such as non-controversial background material or a critically ill witness. The ALJ concluded that Respondent's broad based request for telephonic testimony of all witnesses failed to establish an extraordinary need for such a process.

[Nuclear & Environmental Digest VII D 2]
TESTIMONY BY AFFIDAVIT

In Smyth v. Johnson Controls World, Inc. ,1998-ERA-23 (ALJ July 24, 1998), Complainant indicated in his pre-hearing report that he would not be calling any witnesses because all are presently employed by Respondent, and Complainant did not want to jeopardize their employment and livelihood or subject them to the treatment he allegedly had received. Complainant attached to his report several documents evidently for the purpose of using them as affidavits in lieu of live testimony. The ALJ expressed concern about whether Complainant should be allowed to submit affidavits as evidence, noting the general rule that deposition testimony in whistleblower hearing is disfavored, and the exceptions, such as non-controversial background material or a critically ill witness. The ALJ also noted the Secretary's ruling in English v. General Elec. Co. ,1985-ERA-2 (Sec'y Feb. 13, 1992), excluding an affidavit written and offered into evidence by Complainant, because it deprived Respondent of the right of cross examination. The ALJ concluded that the ARB would apply the same logic to the instant case. Moreover, the ALJ noted that witnesses would also be protected by the ERA whistleblower provision.

[N/E Digest VII D 2]
EVIDENCE; DOCUMENTS TAKEN BY COMPLAINANT WHILE REPORTING THE EPA

In Takvorian v. Saybolt, Inc ., 96-CAA-11 (ALJ Mar. 3, 1997), Respondent objected to receipt of a series of Complainant's exhibits, many of which consisted of documents marked as internal corporate documents of Respondent, on the theory that Complainant was an agent of the EPA at the time that those documents were either photocopied or taken by Complainant, and therefore they were "warrantless seizures" in violation of the Fourth Amendment. The ALJ found that Complainant was not an agent of the EPA because he was merely communicating with the EPA during this period, and because EPA did not appear to have authorized the taking of those documents. Further, even assuming arguendo that Complainant was an EPA agent, the ALJ found that he would receive the documents into evidence because a DOL environmental whistleblower suit is not brought by the government but a private individual.

SUBPOENAS; RECEIPT OF HEARSAY DOCUMENT WHERE ATTENDANCE OF WITNESS COULD NOT BE COMPELLED BECAUSE OF LACK OF SUBPOENA POWER
[N/E Digest VII B 1 and VII D 2]

DISCOVERY; DOCUMENTS NOT TIMELY EXCHANGED; ADMISSION PERMISSIBLE WHERE ALJ MADE ERRONEOUS PRE-HEARING RULINGS REGARDING RELEVANCY
[N/E Digest VII D 2]

In Seater v. Southern California Edison Co ., 95-ERA-13 (ARB Sept. 27, 1996), the ALJ had rejected several exhibits proffered by Complainant based on their untimely exchange with Respondent. The Board, however, held that in view of the ALJ's erroneous rulings concerning relevancy in a prehearing teleconference, Complainant's failure to make the timely exchange did not constitute a bar to their admission. The Board noted that Respondent's personnel had generated these documents and that Respondent had provided them to Complainant during discovery, thereby undermining any contention of surprise.

EVIDENCE; RELEVANCY OF TECHNICAL MERIT OF COMPLAINANT'S SAFETY CONCERN; LIMITATIONS ON ADMISSION OF RELEVANT AND PROBATIVE EVIDENCE
[N/E Digest VII D 2; X G; XI E 7]

In Seater v. Southern California Edison Co . , 95-ERA-13 (ARB Sept. 27, 1996), Complainant argued that the ALJ committed error in the exclusion of evidence, on relevancy grounds, proffered regarding the technical merit of Complainant's safety concerns. The Board agreed with Complainant that such evidence was relevant in regard to Respondent's motive -- the more credence given to Complainant's theory within Respondent's facility and elsewhere in the nuclear industry, the more likely it is that Respondent's management believed Complainant's theory would cause tension and would have wanted to cause Complainant's prompt departure. The Board ruled that with regard to the merits of Complainant's view of the technical issues, "it is adequate, for purposes of providing evidence relevant to the issue of retaliatory intent, to establish that others having expertise in this technological area found [Complainant's] view to have merit. The question of who is actually correct regarding the competing views about [the technological issue] is not germane to the retaliatory intent issue. The ALJ may therefore find it appropriate to exclude from consideration 'unduly repetitious' evidence concerning the technical merits of [Complainant's] view on [the technological issue] in conducting the proceeding on remand, pursuant to 29 C.F.R. § 24.5(e)(1) and Section 7(c) of the Administrative Procedure Act, 5 U.S.C. § 556(d)." Slip op. at 6 (citations omitted).

The ALJ had expressed concern about unduly burdening the record. In a footnote, the Board held that 29 C.F.R. § 24.5(e)(1) is controlling over the OALJ Rules of Practice and Procedure rule of evidence at 29 C.F.R. § 18.403 in regard to the exclusion of relevant evidence. Section 18.403 would permit exclusion of relevant evidence in certain circumstances including "undue delay, waste of time, or needless presentation of cumulative evidence." Section 24.5(e)(1), however, does not allow for exclusion of probative evidence unless it is "unduly repetitious". The Board noted that this section "is consistent with the nature of the evidence presented in a circumstantial evidence case of retaliatory intent, some of which may appear to be of little probative value until the evidence is considered as a whole...", and "is also in accord with Section 7(c) of the APA, 5 U.S.C. § 556(d)." Slip op. at 6 n.8.

EVIDENCE; ALJ MAY LIMIT PRESENTATION OF ADDITIONAL EVIDENCE WHERE PROFFERER CANNOT IDENTIFY WHAT SALIENT POINTS WOULD BE ADDED
[N/E Digest VII D 2]

In Seater v. Southern California Edison Co . , 95-ERA-13 (ARB Sept. 27, 1996), Complainant elicited testimony and submitted documentary evidence that tended to show that Respondent may have been interested in garnering favor with NRC officials. There was not necessarily a connection, however, between that interest and Complainant's safety concerns or the adverse action being taken against Complainant. Thus, where Complainant was not able to identify what salient points could be established by the presentation of further evidence on this issue, the ALJ did not err in limiting further presentation of evidence on this allegation.

The Board noted that Complainant had filed a motion to supplement the record on this collusion allegation with a magazine article concerning the relationship of the NRC to the nuclear industry. The Board denied the motion between the article did not provide evidence that would link any interest by Respondent's management in garnering favor in regard to the safety issue raised by Complainant.

EXCLUSION OF WITNESS; HARMLESS ERROR
[N/E Digest VII D 2]

In Robinson v. Martin Marietta Services, Inc. , 94-TSC-7 (ARB Sept. 23, 1996), it was, at most, harmless error for the ALJ to exclude the testimony of Complainant's pastoral counselor who would have testified about Complainant's symptoms of depression and anxiety, because this testimony was only relevant to compensatory damages -- an issue only relevant if Complainant prevailed. Complainant had not prevailed on the merits. It was also harmless error for the ALJ to have excluded the testimony of a retired special agent of the Office of Inspector General of a Federal agency where the federal Respondents in the case had been properly dismissed for a reason unrelated to the agent's proposed testimony.

OFFICIAL NOTICE
[N/E Digest VII D 2]

In Timmons v. Mattingly Testing Services , 95- ERA-40 (ARB June 21, 1996), the Board held that the contents of the American Welding Society Bridge Welding Code may be subject to the taking of official notice under 29 C.F.R. § 18.201. Slip op. at 9 n.6.

The statute and regulations do contain provisions concerning the time within which the Department of Labor's investigation and adjudication of ERA complaints should be completed.... Such provisions have been construed as directory, rather than mandatory or jurisdictional, however, ... and should not interfere with the full and fair presentation of the case by the parties, in accordance with the Administrative Procedure Act, 5 U.S.C. §§ 554(c), (d), 556(d). Moreover, the full and fair presentation of the case by the parties is crucial to serving the ERA purpose of protecting employees from retaliation for acting on their safety concerns.... The importance of safety in the handling of radioactive materials cannot be gainsaid; there is a crucial public interest at stake when issues of non-compliance with safety regulations arise....

* * *

The time constraints placed on the proceedings before the ALJ directly interfered with the parties' opportunity for a full and fair presentation of the case at hearing. In conducting the hearing, the ALJ erred in repeatedly limiting testimony and refusing to admit documentary evidence on relevancy grounds.

OTION IN LIMINE ; PROPOSED EXPERT ON "VICTIM BLAMING" WHO LACKED RELEVANT EXPERTISE AND WHOSE PROPOSED TESTIMONY WOULD BE MERE ARGUMENT ABOUT INFERENCES TO BE DRAWN
[N/E Digest VII D 2]

In Sipes v. Arctic Slope Inspection Service , 95-TSC-15 (ALJ May 31, 1996), the Complainant proposed to present an expert witness on "victim blaming" -- the phenomenon where a wrongdoer cannot directly face the wrongdoing and therefore expresses his or her guilt or discomfort about the wrongdoing by finding the victim to be the one at fault. The ALJ granted the Respondents' motion in limine to exclude this testimony pursuant to 29 C.F.R § 18.702.

The ALJ found that some of the evidence proposed appeared to be mere argument about inferences to be drawn from the facts at issue, and that the complainant had not demonstrated that the ALJ needed specialized assistance in this regard. In addition, the ALJ found that the proposed expert, despite her personal and family's unfortunate experiences with discrimination and retaliation, did not have the type of general expertise in the social sciences or psychiatry that would qualify her to testify authoritatively about "victim blaming." The ALJ concluded that although the proposed expert's testimony might have some relevance and was arguably admissible under 29 C.F.R § 18.402, it would be excluded as a waste of time under 29 C.F.R § 18.403.

EVIDENCE; LESSENED SIGNIFICANCE OF TECHNICAL RULES ON ADMISSIBILITY IN NON-JURY PROCEEDINGS
[N/E Digest VII D 2]

In Zinn v. University of Missouri , 93-ERA-34 and 36 (Sec'y Jan. 18, 1996), the Secretary noted that the general rule is that an ALJ should admit evidence for whatever probative value it might have, see Fugate v. Tennessee Valley Authority , 93-ERA-9, slip op. at 3-4 (Sec'y Sept. 6, 1995).

EVIDENCE; SCANDALOUS OR IMPERTINENT MATERIAL STRICKEN FROM RECORD
[N/E Digest VII D 2 and IX B 1]

In Diaz-Robainas v. Florida Power & Light Co., 92-ERA-10 (Sec'y Jan. 10, 1996), the Respondent moved to strike a letter written by the Complainant to the Secretary in which the Complainant asserted that the Respondent falsified the record. The Respondent complained that this assertion was scandalous or impertinent. The Secretary struck the portion of the letter in which the challenged assertion was made.

COMPENSATORY DAMAGES; EMOTIONAL IMPACT; EXPERT TESTIMONY; PROCEEDINGS ON REMAND
[N/E Digest VII D 2]

In Mosbaugh v. Georgia Power Co., 91-ERA-1 and 11 (Sec'y Nov. 20, 1995), the Secretary noted that the ERA whistleblower provision authorizes compensatory damages for a complainant's pain and suffering. The Secretary stated that "[t]he very fact of being discharged in violation of the ERA may have a serious emotional impact on a complainant. . . . Although a complainant may support his claim of pain and suffering with the testimony of medical and psychiatric experts, it is not required." Slip op. at 18 (citations omitted).

In Mosbaugh , the Complainant had testified about his anguish over losing his job and remaining unemployed for a lengthy time. In addition, the Complainant had attempted to offer the testimony of an expert witness, but the ALJ accepted a written offer of proof in lieu of permitting the testimony. The ALJ did not make a recommendation on damages, however, because he had recommended a finding that the Respondent did not violate the ERA.

The Secretary, finding that there had been a violation of the ERA, remanded to the ALJ for a recommendation on compensatory damages, directing him to permit the examination and cross- examination the expert concerning stress, emotional distress, and related subjects.

VII D 2 DISCOVERY; SANCTIONS FOR FAILURE TO DISCLOSE; ALJ'S RESPONSIBILITY TO ADMIT EVIDENCE TO AVOID REMAND

the Respondent's motion for sanctions for failure to answer an interrogatory relating to this issue indicated that it must have had actual knowledge of the instance prior to the hearing;
the Complainant had consistently maintained that there were other unnamed instances of discrimination;
the record did not reflect that the Respondent had ever moved to compel discovery and that it had waited 19 months after the complaint was filed to commence discovery.

The Secretary also noted that, as a matter of judicial efficiency, evidence such as was prohibited in this case should be admitted to help avoid the necessity of a remand.

VII D 2 Testimony through deposition disfavored

In Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995), the hearing could not be completed in one day. The ALJ suggested that the final two witnesses for the Respondent testify via deposition, and this was done without objection, outside the presence of the ALJ. The Secretary, in a footnote, observed that "[o]ne of the purposes of conducting a hearing before an ALJ is so that the ALJ can hear all of the testimony and assess the credibility of the witnesses. Having the two main witnesses for the Respondent testify only through deposition defeats this purpose and should therefore be discouraged in all but extraordinary situations."

VII D 2 Limitation on number of witnesses; use of offer of proof as substitute

In Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 1, 1993), the hearing lasted 16 days, included the admission of numerous documents, and resulted in a transcript of over 3,000 pages. In view of the length of the hearing, the ALJ did not permit Respondent to call many of its witnesses, but permitted Respondent to make offers of proof concerning these witnesses.

The Secretary noted this procedure and did not indicate any disfavor.

VII D 2 Authority of ALJ to take evidence by deposition

Where on remand from the Deputy Secretary to permit the complainant to complete presentation of her case before the ALJ (the complainant having been cut off by a time restriction imposed by the ALJ at the original hearing) the ALJ ordered the parties to present testimony by deposition rather than in a hearing, this procedure did not violate due process. Assuming arguendo that the complainant had a constitutionally protected interest and that the due process clause applied to the ALJ hearing, the Secretary noted that due process is flexible, and applied Matthews v. Eldridge, 424 U.S. 319 (1976) to determine how much process was due in this instance. The Matthews test contains three parts:

the private interest affected by the official action;
the risk of an erroneous deprivation of such an interest through the procedures used, and the probable value of any substitute procedures;
the government's interest, including the function involved and fiscal and administrative burdens additional procedures would involve.

424 U.S. at 335.

The Secretary found that taking evidence by deposition where the complainant would have had the opportunity to present witnesses (and complete her own testimony), and to cross-examine opposing witnesses under oath, would not have denied her due process. The Secretary stated that while the complainant's interest is significant, the risk of an erroneous deprivation of that interest was small under these circumstances, and that the cost to the Office of Administrative Law Judges to arrange a hearing to complete one aspect of a case that had, in all other respects, been fully tried, would have been substantial.

Since the complainant failed to avail herself of the opportunity to present her testimony by deposition before the ALJ, the Secretary refused to admit or consider an affidavit regarding that testimony. English v. General Electric Co., 85-ERA-2 (Sec'y Feb. 13, 1992) ( also citing Richardson v. Perales, 402 U.S. 389, 402 ((1971), for the proposition that written reports of doctors can constitute substantial evidence).

VII D 2 Objection going to weight of testimony rather than admissibility

Where an ALJ allows testimony, he or she may properly determine what weight to give it. Thus, where the respondent objected that the ALJ improperly discredited the testimony of several witnesses as hearsay because they gave the testimony to show their state of mind, not the truth of the matter asserted, the Secretary dismissed the objection as going to the definition of hearsay under the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. § 18.801(c). Adams v. Coastal Production Operators, Inc., 89-ERA-3 (Sec'y Aug. 5, 1992).

[Editor's note: Apparently, the Secretary was holding that the objection went to admissibility rather than the propriety of the ground for discrediting the witnesses. Since the testimony was admitted, the fact that it was or was not hearsay was irrelevant.]

[Editor's note: Adams v. Coastal Production Operators, Inc., 89-ERA-3, did not arise under the Energy Reorganization Act, although the OALJ gave it an "ERA" docket number. It was actually a Federal Water Pollution Control Act case.]

VII D 2 ALJ's authority to impose rules on format of evidence submitted

In Trimmer v. Los Alamos National Laboratory, 93- CAA-9 (ALJ Sept. 21, 1993) (prehearing order), Complainant submitted to the ALJ an exhibit list which specified a total of 63 "potential" exhibits, including one exhibit designated as "Bates stamped documents 1 through 1310 previously provided by Complainant."

The ALJ found that the list of potential exhibits did not comply with the prehearing order to exchange proposed exhibits paginated "the purpose of which is to prevent Respondent from having to guess what documentary evidence Complainant may submit and therefore prepare to respond to every possible document, regardless of its relevance." The ALJ noted that it appeared that because Complainant did not select out specific documents "this tribunal will become a dumping ground for Complainant to deposit any and all documents he chooses and rely upon the trier of fact to sort out for the best interest of Complainant." The ALJ therefore held, that when Complainant submitted his proposed exhibits to Respondent, he must separately identify and paginate those exhibits, and highlight the relevant portion of any document exceeding two pages in length. The ALJ directed that no two or more unrelated documents shall be combined into one proposed exhibit, and that Respondent also conform its proposed exhibits to these rules.

VII D 2 Permitting testimony of witness not listed on prehearing witness list

Where Complainant initially moved to strike the entire testimony of Respondent's expert witness on the ground that Respondent had not listed him as a witness prior to the hearing, and when allowed to renew his motion at the completion of the expert's testimony, Complainant withdrew his motion to strike, the Secretary rejected Complainant's contention that consideration of this testimony deprived him of a fair trial. Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993).

VII D 2 Use of deposition in lieu of hearing testimony

In Mansour v. Oncology Services Corp., 94-ERA-41 (ALJ Nov. 23, 1994)(order continuing hearing and confirming rulings), the ALJ ruled that parties would not be permitted to present testimony by deposition in lieu of testimony at the hearing, absent an exigent need (such as physical inability of witness to attend the hearing), the parties' agreement, or the ALJ's ruling that the testimony is truly noncontroversial and credibility is not an issue.

VII D 2 Distinction between receiving reports into the administrative record and admission into evidence

In Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995), the Secretary received several reports into the record for purposes of determining whether there were genuine material issues of fact that would preclude summary judgment, but left it to the ALJ to determine on remand whether the reports would be admitted into evidence.

VII D 2 ALJ authority to question witness

An administrative law judge may, sua sponte, question a witness in regard to a document prepared in the employer in response to investigative proceedings before the Wage and Hour Administrator. See 29 C.F.R. §§ 18.401, 18.402. The ALJ's sua sponte inquiry into the relevance of the letter did not unfairly place the ALJ in the role of the employer's advocate where Complainant explicitly contested his request to the parties that he be allowed to question the witness, the ALJ's questioning revealed simply his intent to under the evidence and to complete the record on that issue, and throughout the hearing the ALJ had shown sensitivity and concern regarding Complainant's pro se status. Shusterman v. Ebasco Servs. Inc., 87-ERA- 27 (Sec'y Jan. 6, 1992).

VII D 3 Dismissal of claim

Casenotes moved to

Division XVIII .

VII d 4 Motion to disqualify ALJ

[Nuclear & Environmental Whistleblower Digest VII D 4]
RECUSAL OF ALJ; CIRCUIT COURT AFFIRMS DISTRICT COURT'S DISMISSAL OF A MAMDAMUS ACTION FOR LACK OF SUBJECT MATTER JURISDICTION (ERA CLAIM)

In Newport v. U.S. Dep't of Labor , No. 09-00186 (8th Cir. Mar. 16, 2010) (case below 2005-ERA-24), the Administrative Review Board affirmed the ALJ's dismissal of the plaintiff's ERA whistleblower claim as a sanction for the plaintiff's improper conduct. The plaintiff then brought a mandamus action in the District Court, seeking to have the ALJ recused and his administrative action reinstated. The 8th Circuit upheld the District Court's dismissal of the plaintiff's mandamus action upon concluding that it lacked subject matter jurisdiction.

In Richter v. Baldwin Associates, 84-ERA-9 to 12 (ALJ July 15, 1986), the ALJ initially recommended to the Secretary that Respondent's motion for summary judgment based on the contention that Complainants had not engaged in protected activity should be granted. The Secretary of Labor did not accept that recommendation and remanded for a hearing on the merits. On remand, Complainant filed a motion for substitution of the ALJ averring that the presently assigned ALJ was not capable of the unbiased and de novo consideration of the evidence.

The ALJ noted that the Part 18 rules of practice provide only for the disqualification of an ALJ, not substitution ( see 29 C.F.R. § 18.31(b)) and that Complainants' motion did not comply with that provision because it was not accompanied by a supporting affidavit.

In addition, the ALJ noted that governing case law did not support a motion for recusal. The fact that an ALJ made earlier rulings, which were reversed, does not disqualify him from presiding over a hearing on remand. NLRB v. Donnelly Garment Co., 330 U.S. 219 (1947). This policy of remanding a case to the original judge is adopted from the judiciary, where appellate courts regularly remand cases to trial judges for hearings. Normandy Beach Improvement Association v. Commissioner, Dept. of Environmental Protection, 472 A.2d 156, 160 (1983).

A basic assumption of our judicial system is that judges approach each new case with impartiality. Disqualification for actual bias or prejudice is a serious matter, and should be required only when bias or prejudice is established by compelling evidence. United States v. Balestrieri, 779 F.2d 1191, 1202 (7th Cir. 1985).

The ALJ noted that disqualification of judges is generally governed by 28 U.S.C. § 455. Subsection (a) of that statute is directed at preventing any appearance of impartiality. More relevant to the instant motion was subsection (b)(1); but the ALJ found that (b)(1) is limited to those situations where the judge's personal knowledge was obtained from an extrajudicial source. [citations omitted]

Absent a contention of personal bias or personal knowledge, with the objection concerning only knowledge the ALJ gained in a judicial capacity, the ALJ found that there was no basis for him to disqualify himself.

[Nuclear & Environmental Whistleblower Digest VII D 4]
CREDIBILITY DETERMINATION AS GROUND FOR SHOWING OF BIAS BY ALJ

In Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ALJ made a detailed and critical finding about the Complainant's credibility. On review before the ARB, Complainant argued that the ALJ's findings exhibited bias and that his credibility findings should therefore be rejected. The ARB, however, found that the ALJ's credibility determinations were fully supported by the record. The ARB also cited Liteky v. United States , 510 U.S. 540 (1994), which holds that a judge may necessarily and properly acquire a negative opinion of a party, which may be necessary to the completion of a judge's task, as in a bench trial.

[Nuclear and Environmental Whistleblower Digest VII D 4]
RECUSAL; BIAS MUST BE SHOWN TO STEM FROM EXTRA-JUDICIAL SOURCE; ATTORNEY CANNOT CREATE GROUNDS FOR RECUSAL

In Edward A. Slavin, Jr. , ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ had suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). On appeal, the attorney and his client argued that the Associate Chief ALJ had been biased and had improperly failed to recuse himself "sua sponte" as they had requested.

The Board found that the attorney and his client had failed either to argue circumstances demonstrating that the judge was improperly biased against the attorney or to submit an affidavit to support recusal due to such bias as required by 29 C.F.R. § 18.31(b). Moreover, the Board stated that to overcome the presumption that ALJs act impartially, "Mr. Slavin would have to allege that Judge Burke harbored bias stemming from an extra-judicial source, rather than what he learned regarding Mr. Slavin from the evidence and proceedings in this case." (citations omitted). The Board rejected the petitioners' argument that the judge instituted the proceeding to retaliate against the attorney's criticism of DOL officials and the judge, finding that "an attorney should not benefit from the disqualification of a judge based on a controversy that the attorney has created." (citations omitted). The Board also rejected the petitioners' argument that the judge created the controversy; the Board finding that the attorney's professional misconduct had been well-documented by DOL ALJs, the ARB, and state and federal courts before the judge in a Notice of Judicial Inquiry, that the judge had administrative responsibility over whistleblower adjudications at OALJ and had learned of the attorney's misconduct in this capacity, and therefore he had "acted on his managerial and judicial responsibility to initiate a Section 18.34(g)(3) inquiry."

[Nuclear & Environmental Whistleblower Digest VII D 4]
RECUSAL; REQUEST TO CHIEF ALJ TO REMOVE PRESIDING JUDGE

In Hasan v. Stone and Webster Engineers and Constructors, Inc. , 2000 ERA 10 (ALJ Jan. 14, 2003), the Chief ALJ denied Complainant's motion requesting that the Chief ALJ order recusal of the presiding ALJ and assign the case to another ALJ. The Chief Judge found that he had no authority to hear motions for recusal of another ALJ initially or as a matter of appeal, citing Johnson v. Oak Ridge Operations Office , 1995 CAA 20, 21 and 22 (ALJ Feb. 12, 1997).

[Nuclear & Environmental Whistleblower Digest VII D 4]
RECUSAL; REQUIREMENT OF AFFIDAVIT IN SUPPORT

In Hasan v. Wolf Creek Nuclear Operating Corp. , 2002 ERA 29 (ALJ July 8, 2002), the ALJ detailed legal authority to the effect that when an ALJ is faced with an allegation of bias or prejudice that is not accompanied by a legally sufficient affidavit, the ALJ is not obligated to recuse himself from the case. The ALJ went on to consider the merits of Complainant's motion to recuse as Complainant was proceeding pro se .

See also In the Matter of Slavin , 2002 SWD 1 (ALJ July 2, 2002) (declining to entertain motion to recuse filed without affidavit); In the Matter of Slavin , 2002 SWD 1 (ALJ July 26, 2002) (containing discussion of why affidavit is required).

[Nuclear & Environmental Digest VII D 4]
RECUSAL; RESPONSIBILITY OF ALJ TO ASK QUESTIONS ABOUT POTENTIAL CONFLICT OF INTEREST ON PART OF COMPLAINANTS' ATTORNEY

In Duncan v. Sacramento Metropolitan Air Quality Management District ,1997-CAA-12 (ALJ Oct. 16, 1998)(order denying motion), one of three Complainants filed a motion for mistrial and judicial recusal because at the hearing the ALJ had brought to the attention of the parties three faxes one of the other Complainants had faxed to the ALJ asserting that the attorney who was then representing all three Complainants had neglected the movant's interests in favor of the other two Complainants. This Complainant's faxes also represented that the Complainant (who brought the present motion for mistrial and recusal) had told her that he felt he could get away with lying when testifying.

In regard to pointing out the potential conflict of interest, the ALJ denied the motion, noting that ALJ has an affirmative duty to inquire into an attorney's potential conflict of interests, and to either ensure that there is "informed consent" to such conflicts, if they are found, or, in the absence of such informed consent, disqualify the attorney. See Smiley v. Director, OWCP , 984 F.2d 278, 281-83 (9th Cir. 1993).

In regard to asking questions to the Complainant accused of being able to lie, the ALJ denied the motion noting that ALJs have clear authority to question witnesses, including parties, that he had not asked for any privileged information, and that no attempt was made by Complainant to assert any privilege during the course of the hearing or before the record was closed.

VII D 5 Refusal to grant continuance

In Johnson v. Old Dominion Security, 86-CAA-3, 4 and 5 (Sec'y May 29, 1991), the ALJ did not abuse his discretion by denying the Respondent's motion for a continuance filed on the morning of the hearing because of newly retained counsel by the Respondent where the Respondent was represented by two counsel and the Respondent was given adequate notice of the hearing and the claims being brought against it.

[Nuclear and Environmental Digest VII.D.5.]
CONTINUANCES; DISCRETION OF ALJ

In Khandelwal v. Southern California Edison , ARB No. 98-159, ALJ Nos. 1997-ERA-6 (ARB Nov. 30, 2000), the ARB held:

The determination whether to grant a continuance is a question committed to the sound discretion of the ALJ and will not be disturbed absent a clear showing of abuse. In reaching a decision to grant or deny a continuance, the ALJ may properly consider the length of the delay requested, the potential adverse effects of that delay, the possible prejudice to the moving party if denied the delay, and the importance of the testimony that may be adduced if the delay is granted. The ALJ should also take into consideration that complaints filed under the ERA are subject to an expedited process. However, even an expedited process must be applied in a manner that is fundamentally fair and thus provides the parties an adequate opportunity for presentation of the case.

Sli p op. at 3 (citations omitted).

In Khandelwal, the ALJ had denied a motion for a continuance of the hearing date on remand, rejecting Complainants stated reasons: time to find an attorney, receipt of a jury summons. The ARB found it was unreasonable for the ALJ to have found that Complainant had adequate time to find counsel. First, Complainant only had 30 days notice of the first hearing. Second, the ALJ should not have expected Complainant to be ready to "hit the ground running" following the remand from the ARB. The ARB found that the ALJ's rejection of the jury duty excuse was arbitrary and prejudicial because the ALJ had not explained why that excuse was not a warranted basis for seeking a continuance. The ARB also faulted the ALJ's discovery order, which set a 30 day period for completion of discovery, but which did not explain how the discovery period was to be allocated between requests and responses, or set a deadline for filing of motions to compel, protective orders, or other discovery conflicts. The Board noted that if the Part 18 rules were to be applied, Complainant's discovery request would have to have been filed with Respondent on the same day that the ALJ issued his prehearing order, to comply with the Part 18 time frames.

CONTINUANCE; GROUNDS FOR
[N/E Digest VII D 5]

The Board in Robinson v. Martin Marietta Services, Inc. , 94-TSC-7 (ARB Sept. 23, 1996), held that continuances are to be granted only in cases of "prior judicial commitments or undue hardship, or a showing of other good cause." 29 C.F.R. § 18.28(a). The ALJ was found not to have abused his discretion in denying a continuance to Complainant, who had a new position as a part-time college professor and did not want to jeopardize his career with the intensity of whistleblower hearing during a work week. Complainant requested that the hearing be held during the college's spring break. The ALJ was not available that week, and Complainant did not state that it was impossible for him to attend the hearing or alter his part time work schedule.

VII D 5 CONTINUANCE; ALJ'S DISCRETION TO DENY CONTINUANCE FOR FURTHER DISCOVERY OR TO RETAIN AN ATTORNEY

In Saporito v. Florida Power & Light Co. , 93-ERA-23 (Sec'y Sept. 7, 1995), the ALJ was found not to have abused his discretion in denying the Complainant's request for a continuance to engage in further discovery. The Complainant had six months to engage in discovery and fully availed himself of that opportunity; Complainant's assertion that he lacked funds to engage in further discovery was rejected because there was no indication that his economic condition would change to permit him to engage in further discovery; Complainant's assertion that the NRC was investigating his allegations and that investigation might provide him with evidence of blacklisting was rejected because there was no documentary evidence that such an investigation was being conducted.

The Secretary also found no abuse of discretion by the ALJ in denying a request for a continuance to retain an attorney where the record supported the ALJ's finding that the Complainant had not made a sufficient effort to retain counsel, there was no assurance that he would succeed in retaining counsel, and considering the Complainant's pro se status, he had adequately represented himself in the case.

VII D 5 Standard for grant of a continuance

Malpass v. General Electric Co., 85-ERA-38,39
(Sec'y Mar. 1, 1994)

After the Wage & Hour Division of the Department of Labor's Employment Standards Administration found no violation pursuant to the complaint, the complainant filed a request for a hearing. During pre-trial procedures, the complainant, at the advice of counsel, refused to comply with various ALJ pre-hearing and discovery orders, failed to respond to Respondent's discovery requests, and failed to appear for the scheduled hearing. The complainant's counsel asserted that he could not proceed with any of the requests or orders until he had received a complete copy of the Wage and Hour Division's final investigation report, even after his FOIA request for the report was denied. Subsequently, the ALJ recommended dismissing the complaint for failure to cooperate.

The Secretary affirmed the ALJ's recommended decision and reviewed the ALJ's authority to control the course of the hearing, and to sanction the parties for failure to comply with the ALJ's orders. The Secretary held that the ALJ was soundly within his discretion in denying a request for a continuance upon counsel's assertion of prior commitments. The ALJ may grant a continuance and the nature of the prior commitment demonstrates "good cause," and the decision may not be overturned unless there is a clear showing of abuse of discretion (where the exercise of discretion has been demonstrated to clearly prejudice the appealing party. In Professionals Air Traffic Controllers Organization v. Federal Labor Relation Authority (FLRA), 685 F.2d 547 (D.C. Cir. 1982), the D.C. Circuit Court enumerated several factors to be considered by an ALJ in exercising this discretion:

(1) "the length of the delay requested," (2) "the potential adverse effects of that delay," (3) "the possible prejudice to the moving party if denied the delay," and (4) "the importance of the testimony that may be adduced if the delay is granted." Id .at 588.

The Secretary also held that the dismissal of the complaint was justified on policy grounds based on the "dilatory and contumacious" conduct of the Complainant's counsel, but denied the Respondent's motion for the award of attorney's fees and costs.

[Editor's note: The Secretary discusses in dicta his doubts about the Secretary's authority directly to order sanction beyond an order controlling the hearing and proceedings before the Secretary. For example, the opinion mentions the lack of power for the Secretary to issue subpoenas or to punish for contempt and failure to comply with a subpoena. See slip. op. pp. 20-21.]

[Nuclear and Environmental Digest VII D 6]
ALJ'S DISMISSAL OF TWO COMPLAINTS CONSOLIDATED FOR HEARING BASED ON RESPONDENT'S MOTION TO DISMISS SECOND COMPLAINT; ARB REINSTATES FIRST COMPLAINT WHERE ALJ'S ORDER TO SHOW CAUSE DID NOT GIVE NOTICE THAT FAILURE TO RESPOND WOULD BE DISPOSITIVE OF BOTH COMPLAINTS

In Madry v. Emlab P&K, LLC , ARB No. 13-049, ALJ Nos. 2013-TSC-1, 2013-CAA-3 (ARB June 6, 2014), on November 1, 2012, OSHA issued a Findings Letter finding reasonable cause to believe that the Respondent violated the TSCA and CAA by giving the Complainant a negative performance appraisal, placing him on a performance improvement plan, and requiring a psychological assessment -- but no reasonable cause to believe that the Complainant's termination violated the TSCA and CAA. On November 13, 2012, the Respondent sent the Complainant a settlement offer that included a waiver-of-reinstatement provision. The Complainant refused the offer and filed a second complaint with OSHA alleging that the waiver-of-reinstatement provision was a violation of the TSCA, CAA and other environmental employee protection laws. On November 27, 2012, the Complainant requested an ALJ hearing on his first complaint. On December 20, 2012, OSHA found no reasonable cause on the second complaint. On January 17, 2013, the Complainant requested an ALJ hearing on the second complaint, and suggested that the two matters be consolidated for hearing. The Respondent moved to dismiss the second complaint on the ground that the waiver-of-reinstatement provision was not an adverse action under the TSCA or CAA. The Complainant, who was appearing pro se, failed to respond to the motion to dismiss, and the ALJ issued an Order to Show Cause. The Complainant then obtained counsel, who responded stating that the Complainant had no objection to dismissal of the second complaint. The response was silent as to the first complaint. The ALJ, noting that the Order to Show Cause had stated the motion to dismiss was dispositive, found that the Complainant had defaulted, and dismissed the entire claim. On appeal, the ARB employing an abuse of discretion standard of review on the ALJ's default ruling, reversed, finding that there was no motion pending for dismissal of the first complaint, and that the Order to Show Cause did not give notice to the Complainant that the ALJ would dismiss the first complaint. The ARB found that the ALJ was within his discretion is dismissing the second complaint, but erred in sua sponte dismissing the first complaint.

One member of the Board concurred, finding that the majority had erroneously employed an "abuse of discretion" standard of review on the ALJ's dismissal of the first complaint because (1) failure to provide notice and opportunity to respond is a matter of due process and not a matter within the ALJ's discretion, and (2) under the ARB's caselaw, summary decision is reviewed de novo.

[Editor's note: The ALJ had treated the Respondent's motion to dismiss as a motion for summary decision because the Respondent had attached exhibits to its motion. See Madry v. Emlab P&K LLC , 2013-TLC-1, 2013-CAA-3 (ALJ Mar. 25, 2013).]

[Nuclear and Environmental Digest VII D 6]
EVIDENCE; SUBMISSION OF POST-HEARING EXHIBITS AFTER ALJ HAD CLOSED THE RECORD

In Benson v. North Alabama Radiopharmacy, Inc. , ARB No. 08-037, ALJ No. 2006-ERA-17 (ARB Apr. 9, 2010), the ARB found that the ALJ did not err in rejecting post-hearing exhibits proffered by the Complainant where, at the conclusion of the hearing, the ALJ had closed the record after asking the parties if they wished to add "anything else" to the record. The ARB cited 29 C.F.R. 18.54(c), which states that "[o]nce the record is closed, no additional evidence shall be accepted into the record except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record."

[Nuclear & Environmental Digest VII D 6]
TIMELINESS OF RESPONSE TO MOTION FOR SUMMARY DECISION SERVED BY MAIL; ALJ'S ORDER PERMITTING FILING BY FAX DOES NOT CUT OFF THE FIVE ADDITIONAL DAYS FOR MAILING PROVIDED FOR BY 29 C.F.R. § 18.4(c)(3)

In Ellison v. Washington Demilitarization Co. , ARB No. 05-098, ALJ No. 2005-CAA-9 (ARB Sept. 25, 2007), the Respondent served a motion for summary decision by mail. The ALJ erred when he failed to afford the Complainant the additional five days for mailing a response provided for by 29 C.F.R. § 18.4(c)(3), prior to ruling on the motion for summary decision. The ALJ had evidently believed that he had ordered the parties to file responsive documents by fax, and therefore the additional mailing days provided for by section 18.4(c)(3) were inapplicable. However, the text of the ALJ's order had only permitted the filing of pleadings and other documents by fax, and had not directed it.

VII D 6 Authority of ALJ to limit argument

In Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993), the ALJ permitted the filing of proposed findings of fact and conclusions of law 30 days after receipt of the hearing transcript. Complainant contended that the ALJ denied him a fair hearing by issuing the Recommended Decision and Order without either permitting closing arguments or considering Complainant's posthearing brief.

The Secretary noted that closing arguments and post hearing submissions are discretionary, and that any possible unfairness had been cured because the Secretary had accepted and considered Complainant's brief.

[Nuclear and Environmental Whistleblower Digest VII D 6]
WITNESS SEQUESTRATION; CALLING COURTROOM OBSERVER AS A REBUTTAL WITNESS WHERE IT WAS CREDIBLY ASSERTED THAT THERE HAD BEEN NO INTENT PRIOR TO THE HEARING TO CALL THE OBSERVER AS A WITNESS

In Bertacchi v. City of Columbus , 2003-WPC-11 (ALJ Aug. 26, 2005), a representative of the Sierra Club had attended the hearing as an observer at the suggestion of the Complainant. Following the testimony of one of the Respondent's witnesses the Complainant called the Sierra Club representative as a rebuttal witness. A sequestration order had been in effect. The ALJ, however, declined to exclude the testimony from the record, finding credible the Complainant's assertion that he manifested no intent to call the representative as witness when he suggested that she should attend the hearing. The ALJ also found that the representative's testimony did not show intent to ambush Respondent and was based primarily on the testimony given by the Respondent's witness. The ALJ found persuasive the fact that Respondent had an opportunity to cross-examine the witness and that it concluded that her testimony did not, in fact, impeach its witness.

[Nuclear and Environmental Whistleblower Digest VII D 6]
WHISTLEBLOWER LITIGANTS DO NOT HAVE A RIGHT TO FILE A POST-HEARING BRIEF WITH THE PRESIDING ALJ

In Ilgenfritz v. U.S. Coast Guard Academy , ARB No. 99-066, ALJ No. 1999-WPC-3 (ARB Aug. 28, 2001), Complainant asserted that the ALJ erred because the ALJ did not give the parties an opportunity to file post-hearing briefs. Complainant's argument was based on the theory that the APA requires that parties be afforded an opportunity to file proposed findings and conclusions with the ALJ. The ARB found that the APA requires that parties to administrative proceedings must be given an opportunity to argue their positions, but provides agencies with flexibility to determine when this will occur during the proceeding. See 5 U.S.C.A. §557(c). The ARB ruled that parties may be given an opportunity to file proposed findings and conclusions before a recommended decision is issued, but that alternatively, after a recommended decision is issued by a subordinate decision maker, the agency can provide the parties with an opportunity to file exceptions to the recommended decision.

The ARB held that DOL has clearly taken this second course by creating the Board and allowing parties to petition the Board to review any recommended decision issued by an ALJ under the whistleblower protection provisions of the environmental acts. The ARB also noted that "To the extent that Ilgenfritz expected to file a post-hearing brief with the ALJ, or asserts that he was entitled to file a post-hearing brief 'as a matter of right,' his expectation was unwarranted. The Department's procedural regulations governing whistleblower complaints state, in pertinent part, 'Post-hearing briefs will not be permitted except at the request of the administrative law judge.' 29 C.F.R. §24.6 (e)(3)." Slip op. at 5 n.4.

[Nuclear and Environmental Whistleblower Digest VII D 6]
MOTION FOR MORE DEFINITE STATEMENT; CRYSTALLIZATION OF ISSUES

In Forest v. Williams Power Corp. , 2000-ERA-16 and 17 (ALJ Apr. 7, 2000), the ALJ had earlier granted Respondent's motion for a more definite statement. Complainant renewed an objection to the granting of Respondent's motion on the ground that Complainant's letter complaints were sufficient to satisfy the pleading requirements for ERA cases. The ALJ agreed that the letters were sufficient for that purpose, but declined to reverse her order granting the motion for more definite statement, holding that she "believe[s] that all parties will benefit from a precise statement as to pertinent allegations, and it will make my consideration of the issues simpler."

[Nuclear and Environmental Whistleblower Digest VII D 6]
PROCEDURE; ALJ SHOULD NOT STRIKE EVIDENCE AND ARGUMENT FROM RECORD

The ARB ruled in Doyle v. Hydro Nuclear Services , ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB ay 17, 2000), that the ALJ erred in striking portions of a motion for summary judgment and attached exhibit filed by Complainant upon the ALJ concluding that the arguments made in those portions of the motion were outside the scope of an ARB remand mandate. The ARB ruled that "[a]pproving this action would establish a procedure that, if abused, could shield erroneous ALJ rulings from review. See Sidney-Vinstein v. A.H. Robins Co. , 697 F.2d 880, 885 (9th Cir. 1983) (reversing district court's grant of motion to strike a motion). Accordingly, we reverse the ALJ's grant of the motion to strike and accept into the record the complete motion for summary judgment." Doyle , 1989-ERA-22 (ARB May 17, 2000) @ n.8.

[Nuclear & Environmental Digest VII D 6]
REQUEST BY TELEVISION STATION TO VIDEOTAPE HEARING

In Ass't Sec'y & Haefling v. United Parcel Service , 1998-STA-6 (ALJ Apr. 23, 1999), the ALJ received an inquiry from a television station whether it would be permitted to videotape at least a portion of the hearing. The hearing was scheduled for a U.S. Tax Court courtroom located in a Federal Building and Courthouse. Complainant took no position on the matter, while the Prosecuting Party and Respondent both objected. The ALJ considered the provisions of 29 C.F.R. Part 2, Subpart B, and concluded that the regulation did not proscribe the introduction of audiovisual coverage in an STAA case absent a specific witness objection. Nonetheless, based on the local rules of the United States District Court, which clearly prohibit the use of audiovisual equipment in any courtroom located within the Federal Building and the environs of the Courthouse, and the U.S. Tax Court's stipulations for the use of Tax Court courtrooms, which also prohibits photographing or broadcasting of any proceedings, the ALJ concluded that he had no discretion to authorize the videotaping of all or any portion of the proceeding.

[N/E Digest VII D 6]
CONFIDENTIAL INFORMATION IN BRIEF

In Thompson v. Houston Lighting & Power Co. , 96-ERA-34 and 38 (ALJ Jan. 8, 1998), the ALJ permitted the parties to submit briefs for the record that were redacted in regard to confidential medical information.

[N/E Digest VII D 6]
FOIA; RELATIONSHIP TO ALJ'S ORDER SEALING RECORD

In Macktal v. Brown & Root, Inc. , 86-ERA-23 (ARB Jan. 6, 1998), Complainant alleged bias because the ALJ refused to sign an order sealing certain documents that shed adverse information about Complainant. The ARB observed that the documents, in fact, were never received into evidence and were not included in the court reporter's looseleaf binder of respondent's exhibits (the documents, however, were placed in a folder marked "Rejected Exhibits"). The ARB also observed that even if the documents had been included in the record and had been placed under "seal" by the ALJ, whether they would be available to the public would be determined by the FOIA and applicable FOIA regulations. See 29 C.F.R. Part 70.

[N/E Digest VII D 6]
PRO SE COMPLAINANT; ALJ'S QUESTIONING OF

In Eiff v. Entergy Operations, Inc. , 96-ERA-42 (ARB Oct. 3, 1997), the ARB noted that it appreciated the ALJ's questioning of Complainant, who had appeared pro se .

WITNESSES; SENSITIVITY TO STATE OF HEALTH IN REGARD TO TESTIFYING
[N/E Digest VII D 6]

In Seater v. Southern California Edison Co ., 95-ERA-13 (ARB Sept. 27, 1996), the Board held that the ALJ's ruling that a proposed witness for Complainant would be allowed only if the witness' deposition was taken in person, either for discovery or in lieu of hearing testimony, failed to accommodate the witness' critical state of health. Complainant's assertion at the hearing that the witness' condition would be adversely affected by unrestricted, in-person questioning was substantiated by a physician's statement. See 29 C.F.R. §18.611 (ALJ should control mode and order of questioning of witnesses); 29 C.F.R. § 18.15 (authority of ALJ to restrict conditions of discovery).

In this regard, the Board found misplaced Complainant's reliance on the Americans with Disabilities Act. The Board also noted that Section 501 of the Rehabilitation Act provides for access for handicapped individuals to Federal agency proceedings. Neither of these statutes, however, controls the issue at hand--how to strike a balance between the due process rights of the parties to the case.

WITNESSES; TAKING OF TESTIMONY BY TELEPHONE
[N/E Digest VII D 6]

Although neither the procedural regulations governing DOL whistleblower proceedings, 29 C.F.R. Part 24, nor the general OALJ rules of practice, 29 C.F.R. Part 18, provide for the taking of testimony by telephone, such practice is permissible in certain circumstances. Seater v. Southern California Edison Co ., 95-ERA-13 (ARB Sept. 27, 1996). In Seater , telephonic testimony was appropriate where the proposed witness' state of health precluded unrestricted, in-person questioning.

The Board stated that "[a]lthough telephonic testimony does not provide the opportunity for observation of the witness that is provided by in-person testimony, it does provide more opportunity for observation of the witness than does a deposition submitted in lieu of such testimony." Slip op. at 14 (citation omitted). The Board found that since the proposed witness was an employee of Respondent -- the party which will cross-examine that witness--"the requirement of an in-person appearance at hearing is unnecessary to impress upon the witness the seriousness of the matter in which he is giving testimony." Slip op. at 15 (citation omitted).

In a footnote, the Board noted that "[t]elephonic testimony should be taken with specified safeguards to reliability in place, e.g. , a notary/court reporter present with the witness to administer the oath or affirmation pursuant to Section 18.603, the recording of the witness testimony on videotape, in addition to transcription of the testimony by the court reporter at the hearing site...." Slip op. at 15 n.24 (citations omitted).

DISCOVERY; EXCHANGE OF DOCUMENTS RELATING TO PRIOR INCONSISTENT STATEMENTS BY WITNESS
[N/E Digest VII D 6]

A respondent may not properly withhold evidentiary exhibits solely because such exhibits would be used on cross-examination. A narrow exception exists, however, for evidence of inconsistent statements by witnesses, when introduced solely for the purpose of impeaching witness testimony. Pursuant to 29 C.F.R. § 18.613, evidence of such statements may be withheld, subject to disclosure to opposing counsel at the time the witness is questioned regarding those statements.

Seater v. Southern California Edison Co ., 95-ERA-13 (ARB Sept. 27, 1996).

STANDARDS OF CONDUCT AT HEARING
[N/E Digest VII D 6]

It is not required that a hearing be conducted in a rigid or overly formal manner. Nonetheless, an ALJ should not hesitate to apprise the witnesses of basic standards of conduct during examination by counsel. It is not the role of the witness to object on relevancy grounds to a question or line of questioning. See 29 C.F.R. §§ 18.36, 18.37, 18.611. Where, however, a party is appearing without legal counsel, it is appropriate for the party, when being examined as a witness to raise such objections. Timmons v. Mattingly Testing Services , 95-ERA-40, slip op. at 15 n.11 (ARB June 21, 1996).

TRIAL MANAGEMENT; BIFURCATED HEARING ON LIABILITY AND DAMAGES
[N/E Digest VII D 6]

In Masek v. The Cadle Co. , 95-WPC-1 (ALJ Mar. 11, 1996), the ALJ had ordered that the hearing would be bifurcated as to the issues of liability and damages. In his arch 11, 1996 recommended decision, the ALJ concluded that the Complainant was entitled to relief, and ordered that the parties consult regarding a time and place for a hearing on damages to be held within 120 days. The ALJ also directed the parties to discuss whether a settlement of damages was possible, and whether the testimony or other evidence on damages could be taken by deposition and/or affidavit.

VII D 6 Agency head as witness; sanctions for nonappearance

In Douglas v. Tennessee Valley Authority, 94-CAA-9 (ALJ June 30, 1995), the Chairman of the TVA refused to appear as witness despite the ALJ's order, and Complainant moved for sanctions. Respondent argued that because the Chairman had previously appeared at a deposition, had nothing to add the hearing, and was not required to appear -- as an agency head -- "unless a clear showing is made that such a proceeding is essential to prevent prejudice or injustice." Slip op. at 29, quoting Respondent's Brief, citing Wirtz v Local 30, International Union of Operating Engrs, 34 F.R.D. 13, 14, (S.D.N.Y. 1963). The ALJ rejected the Respondent's arguments, noting that it was the trier of fact and not the Respondent that determines whether a particular party's presence is necessary to the resolution of a particular matter, and noting that his order included a finding that the Chairman's testimony was relevant and necessary. Thus, the ALJ imposed the sanctions drawing adverse inferences against the Respondent -- specifically, a finding that one of Complainant's witnesses was credible, and a preclusion of the Respondent from litigating the credibility of the witness.

The ALJ noted that even without the sanctions in the case, he would have found Complainant's witness to be credible.

VII D 6 Expansion of scope of hearing

In Mitchell v. EG & G (Idaho), 87-ERA-22 (Sec'y July 22, 1993), the ALJ scheduled a hearing "strictly limited to the single issue of timeliness ." (emphasis in original) After the hearing the ALJ issued a Recommended Decision & Order in which he held, inter alia, that one Respondent, TVA, was entitled to dismissal as a matter of law because Complainant "voluntarily amplified the range and exceeded the scope for the Hearing was designed and [was] bound by . . . his evidence firmly establish[ing] that [TVA] was not his employer" thereby precluding ERA coverage. The Secretary held that an examination of the record did not support the ALJ's conclusion that Complainant waived the limited scope of the hearing, but rather indicated that evidence regarding employment by TVA was offered solely as background for an understanding of the timeliness issue. He also noted, but did not decide, that the ERA does not "ineluctably" require an employer-employee relationship.

VII E Miscellaneous; transcription of conference call

In United States Dept. of Labor v. Jacksonville Shipyards, Inc., 89-OFC-1 (Sec'y July 19, 1990), the Plaintiff excepted to the ALJ's refusal to transcribe telephone conference calls among the ALJ and counsel for the parties. The Secretary noted that nothing in the OFCCP regulations or the Part 18 rules of practice and procedure requires or prohibits such transcription. The Secretary denied the exception and noted that she was reluctant to intrude on the details of ALJ case management. She noted, however, that "it is appropriate for ALJs to consider transcribing telephone conferences involving arguments on motions made by counsel or rulings by the ALJs.

[Nuclear & Environmental Whistleblower Digest VII E]
FOIA; CRITICAL INFRASTRUCTURE INFORMATION

The Homeland Security Act of 2002, Public Law 107 296, 116 Stat. 2135, § 214(a), includes a provision that describes how the new Department of Homeland Security is to treat critical infrastructure information it obtains through voluntary submission. For example, one provision operates as a new "Exemption 3 statute" under the Freedom of Information Act, 5 U.S.C. § 552(b)(3).

According to the Department of Justice, Office of Information and Privacy (OIP), this new law operates similarly to Exemption 4 in the submission of business and financial information. OIP states that "'[t]he term 'covered Federal agency' means the Department of Homeland Security.' Pub. L. No. 107 296, 116 Stat. 2135, § 212(2)Y." (emphasis added) For more details, see www.usdoj.gov/oip/foiapost/2003foiapost4.htm

The new FOIA exemption does not apply to OALJ as the Department of Labor is not part of the Department of Homeland Security; however, it may be relevant if information is submitted into the record from a Homeland Security agency.

[Nuclear and Environmental Whistleblower Digest VII E]
NEW ARGUMENT RAISED IN REPLY BRIEF; ALJ MUST PROVIDE OPPOSING PARTY OPPORTUNITY TO RESPOND

In Erickson v. U.S. Environmental Protection Agency , ARB No. 99-095, ALJ No. 1999-CAA-2 (ARB July 31, 2001), the ARB held that "[a]t a minimum, ... when a new argument is raised in a reply brief, the other party must be given an adequate opportunity to respond in some manner ( e.g. , by ordering an additional round of briefing)." Slip op. at 7 (citation omitted).

[Nuclear & Environmental Digest VII E]
SEALING OF RECORD IN REGARD TO MEDICAL RECORDS

In Marcus v. U.S. Environmental Protection Agency , 1996-CAA-3 and 7 (ALJ Dec. 15, 1998), the ALJ granted Complainant's request that testimony from the medical experts and any medical records submitted as exhibits be placed in a restricted access portion of the case file pursuant to 29 C.F.R. § 18.56 and Brown v. Holmes & Narver, Inc. , 1990-ERA-26 (Sec'y May 11, 1994). The ALJ placed the relevant exhibits and transcripts in sealed envelopes. She also discussed the restricted access information in a sealed, unpublished addendum to the recommended decision.

VII.E. FOIA; Withholding of parties' names where no violation was found

McCutchen v. United States Dep't of Health and Human Servs., 30 F.3d 183 (D.C. Cir. 1994)

Appellee McCutchen had requested a list of investigations of scientific misconduct from Appellant Department of Health and Human Services' Office of Scientific Integrity pursuant to the Freedom of Information Act. The Department complied with the request except in cases where the OSI had found no misconduct. In those cases, the Department deleted the names of all the complainants and the respondents, claiming that such information was exempt from disclosure under 5 U.S.C. § 552(b)(6),(7)(C), & (7)(D) (Exemptions 6, 7(C), and 7(D)). Exemption 6 applies to files containing information such as personnel or medical data where an individual's personal privacy is at stake. Exemption 7(C) excludes "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Exemption 7(D) protects the identities of confidential sources. The district court upheld the nondisclosure of the complainants' names but ordered the Department to disclose the names of the respondents. In balancing the privacy interests of the individuals who were the targets of the investigations with the public interest in ensuring that the investigations conducted by the OSI were complete, the district court found that the "'growing concern' that OSI was mishandling [the] investigations" was substantial enough to outweigh the respondents'' privacy interests. 30 F.3d at ___.

The Court of Appeals for the District of Columbia reversed in part, finding that the "mere desire to review how an agency is doing its job, coupled with allegations that it is not, does not create a public interest sufficient to override the privacy interests protected by Exemption 7(C)." 30 F.3d at ___, citing Davis v. Dep't of Justice, 968 F.2d 1276 (D.C. Cir. 1992). Additionally, since Congress had statutorily created an obligation for universities and other institutions receiving research grants to investigate and report the HHS any allegations of substantial scientific fraud, the court deferred to Congress' judgment that this procedure would be effective.

In Washington Post Co. v. Dep't of Justice, 274 863 F.2d 96 (D.C. Cir. 1988), the court had held that an individual, even though acting in a professional role, retains a privacy interest of "personal honor," and that "the protection accorded reputation [under Exemption 7(C)] would generally shield material when disclosure would show that an individual was the target of a law enforcement investigation." Id. at 100-01. The court found that the "personal honor" of the respondents'' were at stake in this case where the respondents would be subject to the stigma that is associated with being the target of law enforcement investigations. Hence, the court held that the respondents, after being exonerated, had a substantial privacy interest, which was protected by Exemption 7(C), in having their names withheld from disclosure. It was further noted that where a disclosure would constitute an invasion of privacy under Exemption 7(C), such a disclosure would also be protected under Exemption 6, which requires that the invasion of privacy be "clearly unwarranted."

The court affirmed the district court's holding that the complainants' names were rightfully withheld. The complainants have an interest in remaining anonymous to avoid retaliation, which is also protected under Exemption 7(C). Since Exemption 7(C) could be used to suppress the names of the complainants, the court did not address whether the names would also be protected under Exemption 7(D).

[Nuclear and Environmental Whistleblower Digest VII E]
NAMING OF RESPONDENTS; OFFICE OF THE INSPECTOR GENERAL IS A PART OF THE AGENCY RATHER THAN A SEPARATE ENTITY

In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Complainant named the EPA and the EPA Office of the Inspector General each as respondents in their own right. The ARB noted that the EPA IG is an employee of, acts on behalf of, and operates for the benefit of the EPA; thus, when referencing the Respondent in the decision, the ARB would merely refer to the EPA unless necessary to identify specific units within EPA.

[Nuclear and Environmental Whistleblower Digest VII E]
TRIAL OF ISSUE BY IMPLIED CONSENT

In Sasse v. USDOL , No. 04-3245 (6th Cir. May 31, 2005) (case below ARB No. 02-077, ALJ No. 1998-CAA-7), the Sixth Circuit held that the Complainant's suspension, allegedly in retaliation for contacts the Complainant made with a congressman, was not cognizable where the matter arose after the filing of the DOL environmental whistleblower complaint and where the elements of trial by implied consent were not present. The Complainant was an Assistant U.S. Attorney (AUSA). The court looked to FRCP 15(b) for guidance in interpreting the DOL rule on trial by implied consent at 29 C.F.R. § 18.5(e). The mere fact that the Respondent's attorneys asked questions about the contact with the Congressman did not serve to establish that the Respondent had fair notice of a new, unpleaded issue entering the case where the questions were clearly designed to elicit testimony relevant to the Complainant's credbility. The court expressed no opinion on whether an AUSA engages in protected activity by speaking with a Congressman about certain aspects of his job, but limited its holding to a finding that such was neither pled in the complaint nor tried by the implied consent of the parties.

[Nuclear and Environmental Whistleblower Digest VII E]
COVERAGE; DISTINCTION BETWEEN "JURISDICTION" AND COVERAGE

In Devers v. Kaiser-Hill Co. , ARB No. 03-113, ALJ No. 2001-SWD-3 (ARB Mar. 31, 2005), the ALJ found that the Complainants had not engaged in protected activity and therefore dismissed their complaints for lack of jurisdiction. The ARB clarified that the dismissal was for lack of coverage, not lack of jurisdiction. The Board wrote:

The ALJ's dismissal of the Complainants' claims for lack of jurisdiction requires some clarification. The complaint filed with OSHA under the ERA, TSCA, SWDA, and CERCLA conferred jurisdiction upon the ALJ to determine whether the Complainants were entitled to relief under one or more of those statutes. See Bell v. Hood , 327 U.S. 678, 682 (1946) (whether the complaint states a cause of action on which relief could be granted is a question of law, which must be decided after, and not before, the court has assumed jurisdiction over the controversy; if the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction); Culligan v. American Heavy Lifting Shipping Co. , ARB No. 03-46, ALJ Nos. 00-CAA-20, 02-CAA-09, 11, slip op. at 7-11 (ARB June 30, 2004) (ARB has jurisdiction to decide that the complainants' case must be dismissed under the TSCA, SWDA, and CERCLA). Where, as here, the case is fully litigated on the merits, and the ALJ finds and concludes that what the Complainants assert is their protected activity is not in fact protected under the statutes at issue, we consider the question to be one of coverage under those statutes and not of jurisdiction. See Gain v. Las Vegas Metro. Police Dep't, ARB No. 03-108, ALJ No. 02-SWD-4, slip op. at 4 n.5 (ARB June 30, 2004). ...

Slip op. at n.3.