USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION IX -- MISCELLANEOUS PROCEDURAL ISSUES

In Schafermeyer v. Blue Grass Army Depot , ARB No. 07-082, ALJ No. 2007-CAA-1 (ARB Sept. 30, 2008), the ARB applied the 29 C.F.R. Part 24 regulations as they appeared prior to their amendment in 2007, which was after the Complainant filed his complaint on the grounds that the DOL had not indicated that the new regulations should be applied retroactively and that neither party had argued that the new regulations should be applied.

[Editor's note: Compare Rogers v. Pregis Innovative Packaging, Inc. , 2008-CAA-1 (ALJ Aug. 29, 2008), in which the Chief ALJ applied the amended Part 24 rules in consideration of an adjudicatory settlement. The Chief ALJ wrote: "These regulations, being procedural rather than substantive, became effective immediately for pending cases upon publication in the Federal Register. See 72 Fed. Reg. at 44962 (Paragraph VI. Administrative Procedure Act)." Slip op. at 3.]

[N/E Digest IX]
PROCEDURE; AMENDMENTS TO NUCLEAR AND ENVIRONMENTAL WHISTLEBLOWER REGULATIONS

On Monday, February 9, 1998, the Department of Labor published a Final Rule implementing amendments to the nuclear and environmental whistleblower regulations. Procedures for the Handling of Discrimination Complaints Under Federal Employee Protection Statutes , 63 Fed. Reg. 6614 (Feb. 9, 1998). The regulations have an effective date of March 11, 1998.

ost of the amendments relate to implementation of the 1992 amendments to the ERA, enacted into law on October 24, 1992, as part of the Energy Policy Act of 1992. The amendments, however, also revise the procedure for review of ALJ's recommended decisions by the Administrative Review Board, and reflect the transfer of responsibility for administration of the whistleblower provisions from Wage and Hour to OSHA. The following discussion focuses on procedural changes ALJs should be aware of when presiding over whistleblower adjudications.

[N/E Digest IX]
EFFECTIVE DATE; RETROACTIVE APPLICATION?

The regulatory amendments state an effective date of March 11, 1998, but do not clarify whether they apply to cases filed prior to that date. The principles for assessing whether a statute may be lawfully applied retroactively stated in Landgraf v. USI Film Products, Inc. , 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 227 (1994), have been found by the D.C. Circuit to be applicable by analogy to regulations. See Goodyear Tire & Rubber Co. v. Dept. of Energy , 118 F.3d 1531, 1536 (D.C. Cir. 1997). To paraphrase Landgraf :

Statutory retroactively is disfavored; but deciding whether a statute operates retroactively is not always a simple or mechanical task.

A statute does not apply retroactively merely because it is applied in a case arising from conduct antedating he statute's enactment; the question, rather, is whether the new provision attaches new legal consequences to events completed before its enactment.

When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive -- no vested right exists in the decree entered by the trial court . Application of a new jurisdictional rule usually does not take away a substantive right but merely changes the tribunal that hears the case -- present law usually applies in such situations because jurisdictional statutes speak to the power of the court rather than to the rights or obligations of the parties. Changes to procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity. Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive.

When a statute does not contain an express command by Congress to apply retroactively, the court must determine whether the new statute would have a retroactive effect, i.e. , whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.

Most of the amendments to 29 C.F.R. Part 24 are merely implementation of statutory changes, or adjustments to procedure that could not have influenced the litigant's primary conduct. Thus, the Landgraf analysis indicates that most of the Part 24 amendments should be applied to pending cases. But see Brown v. Cain , 104 F.3d 744 (5th Cir. 1997)(mere fact that a rule is procedural does not mean that it applies in every case; applicability ordinarily depends on posture of the particular case).

IX.A. Record closes at conclusion of hearing

The record in a whistleblower proceeding is closed at the conclusion of the hearing absent a showing that new and material evidence became available which was not available prior to the close of the hearing. 29 C.F.R. § 18.54(a) and (c). Sawyers v. Baldwin Union Free School District, 85- TSC-1 (Sec'y Oct. 24, 1994).

[Nuclear and Environmental Digest IX A]
STAY OF REMEDIES; FOUR-PART TEST

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB June 27, 2007), the ARB denied the Respondent's motion for a stay of administrative remedies. The Board uses a four-part test to determine whether to stay its own actions: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the Board grants a stay; and (4) the public interest in granting a stay. In the instant case, the ARB found that the Respondent was not likely to prevail on the merits on appeal despite the Respondent's contention that the ARB applied the wrong legal standard for protected activity. The Respondent argued that payment of the Complainant's attorney fees would result in irreparable harm based on the potentially unnecessary and unrecoverable expense of litigating attorney fees issues before the ALJ and the Board. The ARB rejected this argument, finding that mere injury in terms of money, time and energy is not sufficient to establish irreparable harm. The ARB also rejected the Respondent's argument that the Complainant would not be harmed by a stay on compensatory damages. Finally, the ARB found that a stay would be contrary to the public interest.

[Nuclear and Environmental Digest IX.A.]
COMPLAINANT'S CLOSING ARGUMENT AS TESTIMONY; ALJ REOPENS RECORD TO PERFECT RECORD

In Garcia v. Wantz Equipment , ARB No. 99-109, ALJ No. 1999-CAA-11 (ARB Oct. 31, 2000), Complainant was discharged, according to Respondent, because he worked on personal projects during duty hours. Complainant alleged that he was discharged in retaliation for contacting an authority about Respondent's practice of purging vapors from gasoline or diesels tankers directly into the atmosphere. At the hearing, two witnesses (who were owners of the Respondent) testified that other employees did not work on personal projects on company time. Complainant attempted to rebut this testimony as part of his closing statement. The ALJ therefore reopened the record on this issue, and accepted Complainant's statement during his closing argument as testimonial evidence and allowed additional testimony from Respondent. In his decision, the ALJ reviewed the testimony and found Respondent's witnesses more credible than Complainant. The ARB found no compelling reason to overturn the ALJ's credibility determination, and finding no evidence of disparate treatment, held that Complainant had not met his burden of proving that this termination violated the employee protection provisions of the CAA.

[N/E Digest IX A]
DIRECTION THAT COMPLAINANT PREPARE AN APPENDIX OF VOLUMINOUS RECORD

In Sipes v. Arctic Slope Inspection Service , 95-TSC-15 (ARB Oct. 10, 1997), Complainant was directed by the ARB to prepare an appendix of the record, containing 1) relevant docket entries in the proceeding before the ALJ, 2) relevant portions of the transcript, and 3) any other parts of the record to which Complainant wished to direct the attention of the ARB. If the parties could not agree to the contents of the appendix, Respondent was afforded time to designate other parts of the record not designated by Complainant. The ARB fashioned this order due to the size of the record.

IX A Handling of files

The "whole" administrative record consists of all documents and materials directly or indirectly considered by agency decision makers and includes evidence contrary to the agency's position. See 29 C.F.R. § 24.5(e)(2). Thus, where the administrative law judge evidently considered correspondence relating to settlement negotiations, at least indirectly, when he approved a recommended order that was silent as to the mode of dismissal, the administrative law judge should have included all relevant correspondence concerning settlement negotiations as part of the record forwarded to the Secretary. Thompson v. United States Dept. of Labor, 885 F2d 551 (9th Cir. 1989) (the Secretary had subsequently dismissed the complaint with prejudice, contrary to the intent of the settlement agreement).

[Nuclear and Environmental Whistleblower Digest IX B 1]
CALCULATION OF TIME PERIOD FOR RESPONDING TO A MOTION UNDER OALJ RULES OF PRACTICE AND PROCEDURE

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 interpreted the combined effect of 29 C.F.R. § 18.6(b) and 29 C.F.R. § 18.4(c)(3) as providing 15 days in which to respond to a motion.

IX B 1 Signature on brief

In Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 17, 1993), the Secretary summarily denied Complainant's motion to strike Respondent's Reply Brief on the ground that the signature of counsel was not genuine.

[Nuclear & Environmental Digest IX B 1]
CLEAR ARTICULATION OF CASE BY COMPLAINANT; AUTHORITY OF ALJ TO REQUIRE

When presented with a prolix, rambling complaint, an ALJ has the authority to demand that a complainant come forward with a clear articulation of his or her case. High v. Lockheed Martin Energy Systems, Inc. , ARB No. 98-075, ALJ No. 1996-CAA-8 (ARB Mar. 13, 2001) (suggesting, however, that Fed. R. Civ. P. 12(b)(6) may not be the appropriate tool for dealing with an unintelligible complaint).

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.

IX B 1 Five days added when documents filed by mail

When documents are filed by mail, five days are added to the prescribed period. 29 C.F.R. § 18.4(c)(1), (3). Cable v. Arizona Public Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992).

IX B 1 Filing effective upon receipt by OALJ

A motion is not considered "filed" until it is received by the Office of Administrative Law Judges. See 29 C.F.R. § 18.4(c)(1). Cable v. Arizona Public Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992).

IX B 1 Other filing requirements

See also II B and C (pleading requirements)
See also III B (computation of timeliness of complaint)

IX B 1 Exclusion of late evidence

An ALJ properly excludes late evidence submitted by counsel as an attachment to a brief. 29 C.F.R. § 18.54(c) (1992).

Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y Sept. 28, 1993).

IX b 1. Number of days added to prescribed period for filing a responsive document under 29 C.F.R. § 18.4

In Young v. CBI Services, Inc., 88-ERA-19 (ALJ Apr. 6, 1993), the ALJ interpreted section 18.4(c) of Part 24 (the OALJ Rules of Practice and Procedure) as providing a litigant with a total of ten mailing days. Specifically, the ALJ found that when a pleading is served by mail, five days are added to the prescribed period for taking responsive action pursuant to section 18.4(c)(3), and another five days are added for filing the responsive document where it is filed by mail pursuant to section 18.4(c)(1).

[Editor's note: This ruling was made in explanation of why the ALJ was not issuing an order to show cause why a voluntary dismissal should not be made without prejudice, i.e., the respondent already had the opportunity to respond and did not do so in a timely fashion. Thus, the ruling was not central to the recommended decision, and it may be viewed as the ALJ giving the respondent the maximum possible time period in which to have filed its response.

Nevertheless, it is casenoted because the interpretation of 18.4(c) has been a problem in all areas of practice before OALJ, with many judges taking the position that 18.4(c) adds, at most, five days, while other judges interpret the regulation as it was in Young, as adding ten days when all filing and service was by mail.]

IX B 1 Plagiarism in a brief

In Delcore v. International Brotherhood of Electrical Workers, Local 90, 91-ERA-27 (Sec'y Jan. 12, 1994), the Secretary noted that Complainant's brief to the Secretary had been virtually 100% plagiarized from "The Whistleblower Litigation Handbook: Environmental, Health and Safety Claims," by Stephen M. Kohn. This was discovered on the Secretary's investigation of a complaint by Respondent that Complainant had filed some papers that must have been written by a lawyer and that by failing to reveal his identity the unknown lawyer had committed an ethical violation.

The Secretary did not order any sanction for the plagiarism.

IX B 1 d Failure to Administrator to make timely investigation or to give timely notice of filing of complaint

The failure of the Administrator of the Wage and Hour Division to (1) give the Respondent timely notice of the filing of the complaint in a TSCA employee protection matter, and (2) make a timely investigation, does not deprive the Secretary of jurisdiction over the complaint. Sawyers v. Baldwin Union Free School District, 88-TSC-1 (Sec'y Oct. 5, 1988) (citing Poulos v. Ambassador Fuel Oil Co., 86-CAA-1 (Sec'y Apr. 27, 1987) (as amended by Amendments to Decision and Order of Remand (Sec'y May 6, 1987)).

[Nuclear and Environmental Digest IX B 2]
COURT OF APPEALS HELD THAT THE FORMER EMPLOYEE DID NOT HAVE ADDITIONAL TIME TO FILE THE INITIAL BRIEF BEYOND THE DEADLINES SET BY THE ARB, AND THAT THE ARB COULD DISMISS THE EMPLOYEE'S APPEAL DUE TO HIS FAILURE TO MEET FILING DEADLINE FOR INITIAL BRIEF ON APPEAL

In Ellison v. U.S. Dep't of Labor , No. 09-13054 (11th Cir. June 17, 2010)(unpublished)(case below 2005-CAA-9), a former employee, who allegedly was terminated in retaliation for activities protected under federal whistleblower statutes, filed a complaint with OSHA, which determined that the complaint lacked merit. An administrative law judge granted the former employer's motion for summary disposition. On appeal, the ARB dismissed the employee's appeal on the grounds that his initial brief was untimely and his counsel's explanation for late filing was not credible. The Court of Appeals held that: (1) the former employee did not have additional time to file the initial brief, beyond the deadlines set by the ARB; and (2) the ARB could dismiss the former employee's appeal due to his failure to meet filing deadline for the initial brief on appeal.

[Nuclear and Environmental Digest IX B 2]
ARB BRIEFING ORDER; DISMISSAL OF APPEAL BASED ON FAILURE TO SHOW GOOD CAUSE FOR FAILING TO FILE TIMELY OPENING BRIEF WHERE COMPLAINANT WAS EXPERIENCED BEFORE THE ARB AND HAD PREVIOUSLY BEEN SANCTIONED

In Newport v. Siemens Generation Service Co. , ARB No. 10-005, ALJ No. 2009-ERA-4 (ARB Feb. 24, 2010), the ARB dismissed the Complainant's appeal of an ALJ's decision under the whistleblower provision of the ERA based on the Complainant's failure to timely submit his opening appellate brief in compliance with the ARB's briefing order. The ARB noted that the Complainant was an experienced litigator before the Board and had previously been sanctioned for failing to comply with the ARB's instructions. Moreover, the Complainant had failed, in response to the ARB's order to show cause, to demonstrate good cause for failing to file the brief timely. Moreover, the Complainant's failure to request an enlargement of time to file the brief after the Board warned him that failure to timely file the brief could lead to dismissal of the appeal, evidenced a failure to comply with the Board's briefing order in good faith.

[Nuclear and Environmental Digest IX B 2] APPEAL TO ARB; BRIEFING REQUIREMENTS

In Southerlin v. Nestle Prepared Foods Co. , ARB No. 09-122, ALJ No. 2009-CAA-3 (ARB Nov. 23, 2009), the ARB dismissed the Complainant's appeal because the Complainant had failed to file a brief conforming with the ARB's requirement that briefs be double-spaced, despite being given an second opportunity to file a conforming brief.

[Nuclear and Environmental Digest IX B 2]
TIMELINESS OF INITIAL APPELLATE BRIEF; ATTORNEY'S LACK OF GOOD FAITH IN EXPLAINING FAILURE TO FILE BRIEF IN COMPLIANCE WITH PLAIN LANGUAGE IN ARB BRIEFING ORDER SETTING DUE DATE

In Ellison v. Washington Demilitarization Co. , ARB No. 08-119, ALJ No. 2005-CAA-9 (ARB Mar. 16, 2009), the ARB dismissed an appeal based on the Complainant's attorney's failure to timely file the Complainant's initial brief, and because the attorney's "rationalization for his failure to timely file the brief was not proffered in good faith...." The attorney had submitted the brief with a service list that did not show the actual date of service, but only a statement that it would be delivered within five days of the date that the ARB's briefing ordered specified as the filing date. The mailing envelope indicated that the brief was sent the fourth date after its due date. The Respondent filed a motion to strike, and the ARB issued an Order to Show Cause, signed by the Board's General Counsel on behalf of the Board, why the brief should not be striken as untimely.

In response, the attorney argued that the ARB's General Counsel was mistaken as the applicable procedure, and that the OALJ Rules of Practice and Procedure applied to make the filing timely, regardless of the terms of the ARB briefing order. The attorney accused the Board of prematurely determining the timeliness of the brief, and requested that any ARB member or staff involved in drafting the order to show cause recuse themselves, make a full disclosure to the Complainant about their involvement, and make a full disclosure of any communications with the Respondent about the matter.

The Board found that it was not credible that the attorney genuinely and reasonably believed that the certificate of service did not need to show the date of remittal of the brief but only to state that the attorney expected it to be delivered within five days of the filing date -- or that the ALJ regulations gave the Complainant an additional five days to make the filing. In this regard, the ARB noted that the attorney had extensive litigating experience before the Board, and pointed out several instances showing that the attorney had not previously operated under this belief. Moreover, the ARB noted that the attorney had in a previous appeal failed to file a timely brief resulting in dismissal of his client's appeal. The Board flatly rejected the attorney's imputation that the ARB's General Counsel or the Board members had impermissibly prejudged the case. The Board also noted that even if the ALJ rules applied as suggested by the attorney, the brief would not have been timely as it was not actually received by the Board until the sixth day following the filing date set in the briefing order.

[Nuclear and Environmental Digest IX B 2]
DISMISSAL OF APPEAL BASED ON FAILURE TO FILE OPENING BRIEF

In Bowers v. Barlett Nuclear, Inc. , ARB No. 08-045, ALJ No. 2006-ERA-12 (ARB June 30, 2008), the ARB dismissed the Complainant's appeal where he had failed to file an opening brief in support of of his petition for review, failed to explain that failure in response to the Board's order to show cause, and where construing the Complainant's petition for review as his opening brief would serve no purpose as it failed to address the grounds for dismissal stated in the ALJ's decision (lack of timeliness of request for hearing).

[Nuclear and Environmental Digest IX B 2]
ARB BRIEFING REQUIREMENTS; FAILURE TO FILE OPENING BRIEF

In Coupar v. Unicor (Federal Prison Industries) , ARB No. 05-108, ALJ No. 2005-WPC-2 (ARB Mar. 13, 2008), the ARB dismissed the Complainant's appeal where, although he was proceeding without counsel and was incarcerated, he had failed to file an opening brief despite having more than two and one-half years to do so.

[Nuclear and Environmental Digest IX B 2]
ISSUES RAISED ONLY IN A PERFUNCTORY MANNER MAY BE CONSIDERED WAIVED

In Patrickson v. Entergy Nuclear Operations, Inc. , ARB Nos. 05-069 and 05-070, ALJ No. 2003-ERA-22 (ARB Aug. 32, 2007), the Complainant argued on appeal that the ALJ erred in not addressing the issue of hostile work environment, which was a contention raised in the Complainant's post-hearing brief. The ARB found that the Complainant had not cited relevant legal authority or identified the legal standard for a hostile work environment claim. Nor had he done so before the Board. Accordingly, the ARB declined to consider the issue on appeal, citing federal court authority to the effect that issues adverted to in a perfunctory manner are deemed waived.

IX B 2 Standards for briefs -- OAA

In Bartik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y July 16, 1993) (order denying motion for reconsideration), the Secretary warned against violating the page limits for briefs.

[Nuclear and Environmental Whistleblower Digest IX B 2]
TIMELINESS OF APPEAL; FAILURE OF POSTAL SERVICE TO MAKE TIMELY DELIVERY

In Roseberry v. City of Portsmouth, New Hampshire , ARB No. 06-046, ALJ No. 2005-WPC-4 (ARB Mar. 31, 2006), PDF the ARB found that the Complainant had failed to establish equitable grounds for tolling of the limitations period for petitioning for ARB review. The Complainant argued that he had mailed his appeal five days before it was due with the good faith belief that this was ample time for the postal service to deliver the petition. The ARB, however, found that "[t]he failure to inquire of the Board whether the document had been delivered when the preservation of [the Complainant's] right to appeal was dependent upon timely receipt is evidence of a lack of due diligence."

[Nuclear and Environmental Whistleblower Digest IX B 2]
UNTIMELY APPEAL; FAILURE TO RESPOND TO ARB'S ORDER TO SHOW CAUSE

In Reid v. Niagara Mohawk Power Corp. , ARB No. 04-181, ALJ No. 2000-ERA-23 (ARB Dec. 8, 2004), the Complainant faxed a petition for review to the ARB one day late. The ARB issued an Order to Show Cause giving the Complainant the opportunity to show that the case falls within one of the three recognized grounds for accepting untimely-filed petitions (defendant mislead plaintiff; extraordinary circumstances, precise claim in wrong forum) or some additional appropriate reason. The Complainant, however, did not respond to the Order to Show Cause, and the Board dismissed the appeal.

[Nuclear and Environmental Whistleblower Digest IX B 2]
ATTORNEY MISCONDUCT; STRIKING OF BRIEF BEFORE THE ARB BECAUSE OF INAPPROPRIATE INVECTIVE

In Culligan v. American Heavy Lifting Shipping Co. , ARB No. 03-046, ALJ Nos. 2000-CAA-20, 2001-CAA-9 and 11 (ARB June 30, 2004), the ARB granted the Respondent's motion to strike the Complainant's initial brief where the Complainant's attorney had violated his professional obligation to demonstrate respect for the courts. The attorney's brief, the ARB found, was panoply of gratuitous excoriation and high-blown opinions that obfuscated his discussion of the ALJ's recommended decision. The Board observed that each of the "assertions of error in the R. D. & O. could have been expressed without the addition of adjectives that have no place in a legal document purporting to assist Culligan in his appeal of the adverse decision." Because the attorney had used similar invective in briefing other cases before the ARB, the Board declined to permit him any additional opportunity to address the case, citing by example a prior case in which the same attorney had been permitted to resubmit a brief without personally disparaging remarks. The Board, however, declined to penalize the Complainant for his attorney's inappropriate pleadings by dismissing the appeal.

[Nuclear & Environmental Whistleblower Digest IX B 2]
TIMELINESS OF PETITION FOR ARB REVIEW

The time period for requesting ARB review at 29 C.F.R. § 24.1(b)(2003) is an internal procedural rule adopted to expedite administrative resolution of cases. It is within the ARB's discretion, under proper circumstances, to accept an untimely filed petition for review under principles of equitable tolling. Complainant bears the burden of justifying the application of equitable tolling principles. Where Complainant's only argument was that her receipt of the ALJ's decision was delayed "due to complications associated with USPS forwarding of mail and delivery of it to her by the management at her new address" the ARB found that Complainant failed to demonstrate an extraordinary event that precluded timely filing. The ARB observed that the ALJ's decision had also been served on her counsel, and that there was no assertion that he did not timely receive the decision, and no explanation offered as to why he did not timely file the petition for review. The Board observed that although the Complainant was not personally responsible for the failure of her attorney to make a timely filing, she was accountable for the acts and omissions of her attorney. Gass v. U.S. Department of Energy , ARB No. 03 035, ALJ No. 2002 CAA 2 (ARB Jan. 14, 2004).

[Nuclear & Environmental Whistleblower Digest IX B 2]
ARB PLEADING REQUIREMENTS; DISMISSAL OF APPEAL WHERE COMPLAINANT FAILED TO TIMELY FILE APPELLATE BRIEF OR STATE BASIS FOR APPEAL IN PETITION FOR REVIEW

In High v. Lockheed Martin Energy Systems, Inc. , ARB No. 02 091, ALJ No. 2002 CAA 1 (ARB Nov. 24, 2003), Complainant appealed an ALJ's Recommended Decision and Order. The ARB dismissed the appeal because the petition for review did not indicate how the ALJ's recommendation of dismissal was in error and because Complainant did not file a brief in support of the appeal.

[Nuclear & Environmental Whistleblower Digest IX B 2]
ARB PLEADING REQUIREMENTS; REPEATED FAILURE TO FILE DOCUMENTS WITH APPROPRIATE CAPTION AND IN THE FORM OF A MOTION RESULTS IN REJECTION OF FILING

In Gass v. U.S. Dept. of Energy , ARB No. 03 093, ALJ Nos. 2000 CAA 22 and 2002 CAA 2 (ARB July 11, 2003) and Slavin v. Office of Administrative Law Judges , ARB No. 03 077, ALJ No. 2003 CAA 12 (ARB July 11, 2003), the ARB declined to accept for filing documents filed by Complainant's counsel where counsel had repeatedly refused to comply with the Board's requirements for proper filing. Specifically, counsel had previously been admonished to file requests for Board action in the form of a motion with an appropriate caption. In the instant cases, counsel filed letters requesting a modification in the briefing schedule which were neither in the form of a motion nor did they include the Board's docket number. The ARB returned the proffered filings to Complainant.

To the same effect Steffenhagen v. Securitas Sverige, AR , ARB No. 03 139, ALJ No. 2003 SOX 24 (ARB Sept. 30, 2003); Blodgett v. Tennessee Dept. of Environment & Conservation , ARB No. 03 138, ALJ No. 2003 CAA 15 (ARB Oct. 14, 2003); Somerson v. Mail Contractors of America , ARB No. 03 055, ALJ No. 2002 STA 44 (ARB Nov. 25, 2003).

In Vincent v. Laborer's International Union Local 348 , ARB No. 02 066, ALJ No. 2000 ERA 24 (ARB July 30, 2003), the ALJ had recommended dismissal and Complainant took an appeal to the ARB. The ARB issued a Notice of Appeal and Order Establishing Briefing Schedule. Subsequently, Complainant's attorney withdrew. The ARB granted a 60 day extension of time for filing briefs. Complainant failed to file a timely brief and the ARB issued an order to show cause, to which Complainant did not respond. The ARB determined that even though Complainant's counsel withdrew during the pendency of the appeal, the record provided no indication that Complainant's failure to file a brief or to respond to the order to show cause were due to a lack of legal training. Because of these failures to respond and the fact that 11 months had passed since the deadline for filing a brief, the ARB concluded that Complainant had abandoned his appeal, and therefore dismissed the complaint.

[Nuclear & Environmental Whistleblower Digest IX B 2]
APPELLATE BRIEF; FAILURE TO ESTABLISH EXTRAORDINARY CIRCUMSTANCES SUFFICIENT TO JUSTIFY FOURTH EXTENSION OF TIME

In Reid v. Niagara Mohawk Power Corp. , ARB No. 03 039, ALJ No. 2002 ERA 3 (ARB Dec. 16, 2003), the ARB dismissed Complainant's appeal for failure to prosecute where he had been granted three extensions of time to file his appellate brief, had been warned that no further extensions would be granted absent a showing of extraordinary circumstances, and Complainant's fourth request for an extension ignored the directive to state extraordinary circumstances. In response to an order to show cause, Complainant averred that he was under the mistaken impression that an attorney had agreed to handle the case. The Board, however, did not find this averment sufficient to avoid dismissal because Complainant knew that he was unlikely to receive any further enlargement of time, but apparently made no effort to communicate with the attorney to discuss the case or to confirm that a brief would be filed. The Board wrote: "While the Board does not hold pro se parties to the same standards of professional expertise as those represented by counsel, even pro se parties have an obligation to take the orders of the Board seriously and to comply with them." Slip op. at 3 (citation omitted). The Board noted that Complainant's appeal in a prior case had likewise been dismissed for failure to prosecute.

[Nuclear & Environmental Digest IX B 2]
BRIEF BEFORE ARB; SERVICE ON COMPLAINANT BY MAIL WHEN BRIEF FILED WITH BOARD BY FAX NOT DISCRIMINATORY; REBUTTAL TO REPLY BRIEF PERMITTED

In Slavin v. Pacific Northwest National Laboratory , ARB No. 00-081, ALJ No. 2000-ERA-26 (ARB Feb. 14, 2001), the ARB denied Complainant's motion to strike Respondent DOE's reply brief on the ground that it was faxed to the ARB, but sent by regular mail to Complainant, and therefore the service by mail was "invidiously discriminatory." The ARB found that 29 C.F.R. § 24.8 (2000) does not require service by fax or express mail, and that its briefing schedule was predicated on service by regular mail. Complainant, however, was granted permission to file a rebuttal brief in response to DOE's reply brief.

[Nuclear & Environmental Digest IX B 2]
BRIEFING; PAGE LIMITATIONS

In Duncan v. Sacramento Metropolitan Air Quality Management District , ARB No. 99-011, ALJ No. 1997-CAA-12 (ARB July 10, 2000), the ARB denied Complainant's motion to expand the initial brief page limitation from 30 to 50 pages primarily on the ground that "history dictates that most cases can be fully and sufficiently briefed in 30 pages. In fact, the most effective and persuasive briefs are concise and to the point."

[Nuclear & Environmental Digest IX B 2]
FILING BY E-MAIL; NO ESTABLISHED PROCEDURE

In Parker v. Tennessee Valley Authority , ARB No. 99-123, ALJ No. 1999-ERA-13 (ARB June 12, 2000), the ARB declined to accept a document filed by Complainant by e-mail. The ARB stated that it "has no procedures for the acceptance of e- mailed documents."

[Nuclear & Environmental Digest IX B 2]
BRIEFS BEFORE ARB; PAGES NOT USED IN INITIAL BRIEF DOES NOT INCREASE PAGES AVAILABLE FOR REBUTTAL BRIEF

In Cox v. Lockheed Martin Energy Systems, Inc. , 1997-ERA-17 (ARB Apr. 21, 1999), the ARB denied Complainants' request that they be allowed to exceed the ARB's page allowance for reply briefs on the ground that they had not used all of the allowable pages in the initial brief. The ARB denied the motion, finding that the original page allowance for Complainant's rebuttal brief would be sufficient space to made rebuttal arguments.

[Nuclear & Environmental Digest IX B 2]
PLEADINGS; FAILURE TO REQUEST EXTENSION

In Leveille v. New York Air National Guard , ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB Feb. 15, 2000), the ARB accepted and considered a late filing by Respondents concerning Complainant's attorney fee application, but warned that "attorneys who submit untimely pleadings to the ARB do so at great peril, particularly when no motion is presented requesting the Board's permission to submit the late filing."

[Nuclear & Environmental Digest IX B 2]
FORM OF MOTION BEFORE ARB

In Moore v. U.S. Dept. of Energy , 1998-CAA-16 (ARB Apr. 1, 1998), the ARB placed counsel on notice that in the future it will require motions to be appropriately captioned, titled and formatted, consistent with customary practice before a court, citing, as an example, Fed. R. Civ. P. 7(b).

[Nuclear & Environmental Digest IX B 2]
MOTION FOR SUMMARY REVERSAL BEFORE ARB

The Administrative Review Board disfavors motions for summary reversal of the ALJ's recommended decision because they merely tend to multiply inappropriately the number of pleadings filed in a case. Any arguments that would support a motion for summary reversal can be included in the parties' primary briefs. Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy , 1999-CAA-1, 4 and 6 (ARB Apr. 22, 1999).

To the same effect: Cox v. Lockheed Martin Energy Systems , 1997-ERA-17 (ARB Feb. 24, 1999); Williams v. Lockheed Martin Corp. , 1998-ERA-40 and 42 (ARB Apr. 20, 1999).

IX B 2 Briefs; OAA directives on format and length

In Reid v. Methodist Medical Center, 93-CAA-4 (Sec'y June 25, 1993) (pre-decision order), the Office of Administrative Appeals issued a briefing order stating that briefs were not to exceed 30 double-spaced typed paces; Complainant's attorney's prepared their opening brief in typeface that was about one half the size of typeface normally used on briefs (and smaller than the typeface used on the cover page, the table of contents and the table of authorities), and used 15 pages of single-spaced footnotes; Respondent moved to strike the brief on the ground of an attempt to evade the brief size limitation. The OAA ruled that it would not strike because typeface size, margins and page size had not previously been prescribed, although it characterized these machinations as "efforts on the part of Reid to file briefs which evade the page limitations set in the briefing order." Slip op. at 5- 6. It announced that all future pleading must conform to the page limitations and be prepared in Courier 12 point, 10 character-per-inch type or larger, with minimum one inch left and right margins and minimum 1.25 inch top and bottom margins, printed on 8 1/2 by 11 inch paper. It also warned against attempting to evade page limitations by moving text into single- spaced footnotes.

IX B 3 Amicus briefs

Rule 18.12, relating to a petition for amicus curiae participation in a case, of Title 29 of the Code of Federal Regulations is part of the rules of practice and procedure before ALJs. This rule is applied by the Secretary when parties seek leave to file a brief as amicus curiae before the Secretary. Under that rule, Officers of the government, such as the Administrator of Wage and Hour, may file amicus briefs without seeking leave. Smith v. Littenberg, 92-ERA-52 (Sec'y June 30, 1993).

AMICUS CURIAE; CONSENSUS OF PARTIES THAT BRIEF SHOULD NOT BE CONSIDERED
[N/E Digest IX B 3]

In Diaz-Robainas v. Florida Power & Light Co., 92-ERA-10 (Sec'y Jan. 10, 1996), Florida Energy Consultants, Inc., filed an amicus curiae brief before the Secretary. Both Complainant and Respondent requested that the Secretary not consider the amicus curiae brief, and in view of this consensus, the Secretary did not consider it.

IX B 3 Where Respondent rebuts prima facie case, and ALJ considers entire record in finding that Complainant did not carry ultimate burden, Secretary need not discuss whether prima facie case was established

In Moody v. Tennessee Valley Authority, 91-ERA-40 and 92- ERA-49 (Sec'y Apr. 26, 1995), the Secretary noted that where the Respondent presented evidence to rebut a prima facie case, and the ALJ considered the entire record in reaching his recommended decision that the Complainant did not carry his burden of establishing that the articulated reasons were pretext or that the reason for the adverse employment action was protected activity, the issue of whether the Complainant established a prima facie case did not merit discussion.

IX B 3 Amicus briefs

In Aurich v. Consolidated Edison Co. of New York, Inc., 86-CAA-2 (Sec'y Apr. 23, 1987) (remand order), the Secretary permitted the Government Accountability Project (GAP), a private, non-profit, public interest law organization, to file an amicus curiae brief under the authority of 29 C.F.R. § 18.12.

[Nuclear and Environmental Digest IX B 4]
MISCONDUCT OF THE COMPLAINT; STRICKING OF ABUSIVE BRIEF FILED AFTER PRIOR WARNINGS

After receiving strong and unambiguous warnings in prior cases about the filing of abusive and vituperative pleadings, the Complainant again filed an appellate brief containing abusive language in Hasan v. Sargent & Lundy , ARB No. 05-99, ALJ No. 2002-ERA-32 (ARB Aug. 31, 2007), and the Respondent filed a motion to strike. The Board found that the Complainant's conduct in filing the brief was not so contumacious and egregious as to warrant dismissal of his complaint, but that it could not excuse the abusive and vituperative pleading, and therefore struck the brief.

[Nuclear and Environmental Digest IX B 4]
PRO SE PLEADING; WAIVER OF ARGUMENT NOT DEVELOPED IN APPELLATE BRIEF

Although pro se proceedings are liberally construed, the ARB must be able to discern cogent arguments in the appellate brief. A party must develop an argument with citation to authority. Where a party fails to develop the factual basis of a claim on appeal, and instead merely draws and relies on a bare conclusion, the ARB will deem the argument waived. Hasan v. Sargent & Lundy , ARB No. 05-99, ALJ No. 2002-ERA-32 (ARB Aug. 31, 2007).

IX B 4 Pleadings filed by pro se complainant

In Bonanno v. Northeast Nuclear Energy Co., 92-ERA- 40 and 41 (Sec'y Aug. 25, 1993), the Secretary did not hold Complainant to the same standards for pleadings as if he were represented by counsel.

[Nuclear and Environmental Whistleblower Digest IX B 4]
ARB BRIEFING REQUIREMENTS; FAILURE TO FILE BRIEF OR RESPOND TIMELY TO ORDER TO SHOW CAUSE; LATITUDE AFFORDING PRO SE LITIGANT HAS ITS LIMITS

In Ingram v. Shelly & Sands, Inc. , ARB No. 04-090, ALJ No. 2002-ERA-27 (ARB Mar. 31, 2005), the ARB dismissed the Complainant's complaint for failure to prosecute where she failed to file a brief in support of her petition for review to the ARB pursuant to the ARB's scheduling order, and where she failed to timely respond to the ARB's order to show cause why her complaint should not be dismissed for failure to file a brief. The Complainant's untimely response to the order to show cause asserted a lack of knowledge of what a brief is or how to file it. The Board stated a willingness to extend a pro se litigant a degree of latitude in complying with its procedural requirements, but stated that status as a pro se litigant "does not confer upon [the Complainant] the right to simply disregard those orders that she does not understand without at least attempting to obtain further clarification. The ARB considered a lesser sanction of treating the Complainant's petition for review as her brief, but concluded that it would serve no purpose because it provided no support for a contention that the ALJ's recommended decision was wrong.

[Nuclear and Environmental Whistleblower Digest IX B 4]
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 & Environmental Digest IX B 4]
PRO SE COMPLAINANT; LIBERAL CONSTRUCTION OF PLEADINGS

In Hasan v. Sargent and Lundy , ARB No. 01-001, ALJ No. 2000-ERA-7 (ARB Apr. 30, 2001), the ALJ had recommended dismissal based on failure to state a claim for relief, where the ALJ found that Complainant had not specifically alleged that any employee involved in Respondent's hiring practices had knowledge of Complainant's protected activity.

The ARB observed that pro se pleadings are to be construed liberally, and that although Complainant's pleadings were inartfully drafted, it had been able to discern the basis of his argument. Although he did not specifically so assert in his response to the ALJ's order to show cause, by examining an attachment to Complainant's response to the ALJ's order to show cause, it could be determined that Respondent had conceded that two employees who had participated in the decision not to hire Complainant had previously discussed safety concerns with Complainant. The ARB thus remanded the case for further proceedings. The ARB noted, however, that liberal construction of a pro se complainant's pleadings does not obligate an ALJ to develop arguments on behalf of a complainant.

IX C Consolidation of cases

In Neely v. Tennessee Valley Authority, 90-ERA-41 and 42 (Sec'y Oct. 24, 1990), the Secretary applied Fed. R. Civ. P. 42(a), as made applicable by 29 C.F.R. § 18.1(a), to consolidate two cases to review in a Conciliation Agreement that on its face attempts to settle both cases.

To the same effect: Burchfield v. Tennessee Valley Authority, 90-ERA-45 and 92-ERA-11 (Sec'y Mar. 13, 1992).

[Nuclear and Environmental Whistleblower Digest IX C]
JOINDER OF PARTY NOT INVESTIGATED BY OSHA

In Dann v. Bechtel SAIC Co., LLC , 2005-SDW-4, 5 and 6 (ALJ May 11, 2005), Complainant Dann filed a complaint with OSHA on behalf of himself and two other complainants alleging that he and the other complainants were fired by Bechtel SAIC for protected activity. Dann's letter did not specifically mention Bechtel Nevada, but did allege that there had been "blacklisting." It appeared that a copy of Bechtel Nevada letter to Local 525 informing the local's business manager that all three Complainants were "not eligible for employment with Bechtel Nevada" was attached to the complaint letter. In several follow-up letters to OSHA, Dann specifically complained about the Bechtel Nevada letter. OSHA, however, apparently limited its investigation to the allegations against Bechtel SAIC and did not consider Bechtel Nevada to be a separate employer. When the Complainants' requested an ALJ hearing, they raised the complaint that OSHA had failed to investigate the allegations against Bechtel Nevada. Subsequently, the counsel for all three complainants filed a motion asking that Bechtel Nevada be recognized as a proper respondent in the proceeding before the ALJ. Bechtel Nevada did not respond to the motion, but Bechtel SAIC did, essentially contending that joining Bechtel Nevada without first giving notice to Bechtel Nevada would violate that company's right to procedural due process. The ALJ, however, observed that since the submission of Bechtel SAIC's response, the Complainants had in fact served Bechtel Nevada with notice of their request that Bechtel Nevada be joined as a respondent. The ALJ observed that the ALJ proceeding is entirely de novo and was just beginning. The ALJ therefore ruled that joinder of Bechtel Nevada as a party would not infringe on its due process rights.

After the ALJ issued this ruling, Bechtel Nevada filed its tardy response to the joinder motion. It argued that the letter to the Union was a collective bargaining agreement requirement and that any dispute should be resolved through the CBA process. It also argued that because OSHA did not investigate it, due process would be violated if it was joined as a party before the ALJ. The ALJ, treating the response as a motion for reconsideration, rejected the CBA argument, finding that it might be an affirmative defense to the Complainant's blacklisting claim, but that it did not deprive him of jurisdiction to consider the claim. The ALJ found that because the ALJ hearing was de novo, joinder of Bechtel Nevada would not impinge on its due process rights. Dann v. Bechtel SAIC Co., LLC , 2005-SDW-4, 5 and 6 (ALJ June 1, 2005).

[Nuclear and Environmental Whistleblower Digest IX C]
MOTION TO INTERVENE; MATERIAL CONTRIBUTION STANDARD

In Erickson v. U.S. Environmental Protection Agency, Region 4 , ARB Nos. 03-002 to 004, ALJ Nos. 1999-CAA-2, 2001-CAA-8 and 13, 2002-CAA-3 and 18 (ARB Sept. 14, 2005), the ARB had invited briefing on whether sovereign immunity bars any or all of the Complainant's environmental whistleblower complaints against EPA and the EPA Inspector General. A different Complainant who also had a case pending before the ARB against EPA sought leave to intervene to brief the issue. The Board, finding that in the absence of guidance in its own rules, it was guided by OALJ rules of procedure at 29 C.F.R. Part 18 and the Federal Rules of Civil Procedure, concluded that the movant had failed "to suggest any reason why his participation would contribute materially to the disposition of the proceeding or why his interests are not adequately represented by the existing parties." The ARB also concluded that there was a need for expedition of the appeal. Thus, it denied intervention. See 29 C.F.R. § 18.10(b) and (c) (material contribution standard); FRCP 24(b) (discretion to grant motion for permissive intervention must be exercised with view of whether intervention would unduly delay or prejudice adjudication rights of original parties).

[Nuclear & Environmental Whistleblower Digest IX C]
MOTION TO CONSOLIDATE: MOTION IS MOOT ONCE BOTH CASES ARE PENDING BEFORE THE ARB

In Erickson v. U.S. Environmental Protection Agency , ARB No. 03 011, ALJ No. 1999 CAA 2 (ARB Jan. 29, 2004), after the ALJ had issued a recommended decision, Complainant and Complainant in another whistleblower case against EPA renewed a motion for consolidation. The presiding ALJ orally denied the motion, finding that only the OALJ headquarters was in a position to order consolidation in cases proceeding before two different ALJs. Subsequently the Associate Chief ALJ denied the motion to consolidate, and Complainant and the other Complainant filed a "protective petition for review" of the Associate Chief ALJ's order. Thereafter, a recommended decision was issued in the other whistleblower's case. The ARB ruled that because both ALJs had concluded their adjudications of the respective cases and issued recommended decisions, the motion to consolidate was moot.

[Nuclear & Environmental Whistleblower Digest IX C]
ADDITION OF PARTIES; DUE PROCESS CONSIDERATIONS UNDER 29 C.F.R. § 18.5(e)

See Ewald v. Commonwealth of Virginia, Dept. of Waste Management , ARB No. 02 027, ALJ No. 1989 SDW 1 (ARB Dec. 19, 2003), casenoted at II B 1 b.

[Nuclear & Environmental Digest IX C]
JOINT LIABILITY OF HOLDING COMPANY NOT JOINED IN LAWSUIT

In Hobby v. Georgia Power Co. , ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), Complainant argued that the ALJ erred by not making Respondent Georgia Power's parent company, Southern Company (a holding company for a variety of Southeastern U.S. utilities) liable for his reinstatement and monetary relief. The ARB held that the regulation at 29 C.F.R. § 24.6(a)(2) requires the "party charged" to offer reinstatement, and that since only Georgia Power had been charged by Complainant and found by the Secretary to have violated the ERA, it would decline to expand the scope of the proceeding at that late stage in the proceeding by holding the parent company liable for reinstatement and other remedies. The ARB agreed with the ALJ's admonition, however, directed at Southern Company and its subsidiaries that it should avoid future discrimination against Complainant by not offering him the opportunities for movement from one subsidiary to another as the record showed was common practice among those companies.

[Nuclear and Environmental Digest IX.C.]
JOINDER; UNTIMELY PETITION

In White v. The Osage Tribal Council , 1995-SDW-1 (ALJ Aug. 10, 2000), the ALJ denied Respondent's motion for joinder of EPA as an additional party. Respondent asserted that EPA was an indispensable party because it allegedly participated in Complainant's termination of employment. The ALJ, however, found that the circumstances did not warrant joinder of additional parties where -- the case was on limited remand for re-calculation of back wages, fees, expenses and costs; the remand proceedings were ripe for decision in the fall of 1997, but placed in abeyance based on Respondent's ultimately unsuccessful appeal to the 10th Circuit; joinder of a new party at this late date would require a trial on all issues to afford the new party due process; the joinder could have been accomplished when the case was initially tried; and the issue of Respondent's liability had already been established.

[Nuclear & Environmental Digest IX C]
MOTION TO CONSOLIDATE; SECOND CASE STILL BEFORE OSHA

In Migliore v. Rhode Island Dept. of Environmental Management , 1998-SWD-3 (ALJ Sept. 15, 1998), the ALJ denied Complainant's motion to consolidate the pending matter with a new complaint she had filed with OSHA. The ALJ ruled that OALJ only obtains jurisdiction over a complaint upon appeal by one of the parties from the OSHA determination.

[N/E Digest IX C]
CONSOLIDATION OF MATTER STILL BEFORE WAGE AND HOUR

In Verdone v. Northeast Utilities , 97-ERA-27, 28 and 30 (ALJ June 2, 1997), the ALJ denied Complainant's request that his new complaint that was still pending before Wage and Hour be consolidated with his current complaint before the ALJ because the consolidation request was premature.

IX C Consolidation where a common settlement exists

It is appropriate to consolidate cases for the purpose of reviewing the dismissal of the cases by a common settlement. See Fed. R. Civ. P. 42(a), as made applicable by 29 C.F.R. § 18.1(a) (1989). Stites v. Houston Lighting & Power, 89-ERA-1 and 41 (Sec'y Mar. 16, 1990) (order to consolidate and to show cause).

IX C Consolidation of cases

In Scott v. Yeargin, Inc., 91-SDW-1 and 2 (Sec'y ay 6, 1992), the parties submitted a settlement to the ALJ in case number 91-SDW-1 that would resolve both 91-SDW-1 and 91-SDW- 2, 91-SDW-2 previously having been subject to a recommended order of dismissal, which was pending before the Secretary. For reasons of expedience and administrative economy, the Secretary consolidated the cases for review of the common settlement. Citing Fed. R. Civ. P. 42(a), as made applicable by 29 C.F.R. § 18.1(a) (1991).

IX C Consolidation of cases

Where two whistleblower complaints involve the same parties, the same period of employment following the complainant's alleged protected activity, and discovery conducted during an earlier related case revealed tape recordings relevant to both complaints, the Deputy Chief Judge ordered, pursuant to 29 C.F.R. § 24.5(b), that the complaints be consolidated for hearing. Mosbaugh v. Georgia Power Company, 91-ERA-1 & 11 (ALJ Feb. 25, 1991) (Order of Consolidation as corrected by ar. 6, 1991 Notice).

IX C Consolidation of cases

In consolidating cases with common evidence and issues, the Secretary in Lorenz v. Law Engineering, Inc., 90- CAA-1 and 2 (Sec'y Mar. 12, 1991), cited Fed. R. Civ. P. 42(a), as made applicable by 29 C.F.R. § 18.1(a) (1990).

9 d 1
IX D 1 Motion to supplement record regarding relief granted

In DeFord v. Tennessee Valley Authority, 81-ERA-1 (Sec'y Aug. 16, 1984) (ruling on motion for reconsideration), the Secretary considered whether he could entertain a motion for reconsideration of a final order of the Secretary to supplement the relief granted by increasing the amount awarded for medical expenses, damages for mental pain and suffering, and attorneys' fees, or in the alternative, to remand the case to the ALJ to take evidence. Complainant submitted an affidavit itemizing his additional medical expenses and attorney's fees incurred from about the time was transferred to the ALJ (December 1980) to the month after the Secretary had issued an order following remand from the 6th Circuit (May 1984).

The Secretary assumed that Congressional silence on the issue in the ERA did not indicate an intent to prohibit a motions of this kind, and therefore turned to the Federal Rules of Civil Procedure (incorporated into the rules of practice for administrative proceedings, see e.g., 29 C.F.R. § 18.1; 41 C.F.R. 60-30.1 (1982)) for guidance. The Secretary looked to the only two possibly applicable rules: Rule 59, New Trials; Amendment of Judgments, and Rule 60, Relief for Judgment or Order.

Under both rules, the Secretary concluded that the only arguable basis for Complainant's motion was newly discovered evidence justifying an amended order or a new trial. The Secretary found that such newly discovered evidence must relate to fact existing at the time of trial of which the moving party was excusably ignorant though he exercised due diligence to discover them. Wright & Miller, Federal Practice and Procedure § 2805 (1973). The Secretary noted that a similar standard is applicable under the Tort Claims Act, stating that recovery there is limited to the amount demanded in the administrative claim unless a higher amount can be shown based on newly discovered evidence not reasonably discoverable at the time or intervening facts can be proven. See 29 U.S.C. § 2675(b); McDonald v. United States, 555 F. Supp. 935 (D. Pa. 1983).

The Secretary noted the standards contained in Tort Claims Act:

Plaintiff, of course, has the burden in the original proceeding of proving each element of damage including future medical expenses and future pain and suffering. [citations omitted] In McDonald, the court allowed an amendment of the administrative claim to seek additional damages because the case involved injuries resulting from injection of Swine Flu vaccine . . . . The court put the case in the class of cases involving complex and poorly understood conditions, calling it a "very subtle and complex injury, an injury which is to this day a mystery to the medical field." [ McDonald , 555 F. Supp. 935, quoting from Smorgiassi v. United States, (D.Pa. July 1, 1981, unreported opinion)].

The Secretary then ruled that Complainant had an opportunity in the original hearing before the ALJ to prove his future medical expenses and damages for mental pain and suffering. He found that Complainant's medical condition caused by Respondent's action, the complication of his preexisting mitral valve prolapse, was not such a complex, unusual or poorly understood problem as would justify a Rule 59 or Rule 60 motion.

The Secretary also denied the motion for additional attorneys' fees for work on the post-judgment motion since such work could not be considered as "in connection with the bringing of the complaint" as provided in section 5851 of the ERA.

[Nuclear and Environmental Whistleblower Digest IX D 1]
REOPENING OF RECORD; FAILURE OF ALJ TO APPLY 29 C.F.R. § 18.54(c) AFTER RECORD HAD BEEN CLOSED

In Masek v. The Cadle Co. , ARB No.97-069, ALJ No. 1995-WPC-1 (ARB Apr. 25, 2000), the ARB found that the ALJ erred in accepting into the record the deposition of the Wage and Hour investigator after the conclusion of the hearing. The ARB noted that 29 C.F.R. § 18.54(a)

provides that "[w]hen there is a hearing, the record shall be closed at the conclusion of the hearing unless the administrative law judge directs otherwise." 29 C.F.R. §18.54(a). The ALJ did not direct that the record remain open at the end of the hearing on liability; therefore by operation of Rule 18.54(a), the record closed on June 21, 1995. Rule 18.54(c) restricts the evidence which may be accepted after the close of the record: "Once 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." Id. at 18.54(c)(emphasis added). As we discuss below, Masek did not demonstrate that Rodenhausen's testimony met the requirements of Rule 18.54(c), and the ALJ therefore erred in allowing the deposition and admitting the testimony.

Masek , 1995-WPC-1 @ 9. The post-hearing deposition had been critical to the ALJ's finding that one of Respondent's witnesses was not credible.

[Nuclear & Environmental Digest IX D]
SUPPLEMENTAL EVIDENCE PRESENTED TO COURT OF APPEALS

In Holtzclaw v. Secretary of Labor , No. 97-3347 (6th Cir. Jan. 15, 1999) (unpublished) (available at 1999 WL 68745) (case below 1995-CAA-7), the Sixth Circuit declined to consider documents submitted by Complainant following oral argument, finding that the largest part of the material was not part of the administrative record, and that some of the documents were simply irrelevant.

[N/E Digest IX D 1]
MOTION FOR RECONSIDERATION; APPLICATION OF FEDERAL RULES OF CIVIL PROCEDURE TO INTERLOCUTORY ORDER

In Shelton v. Oak Ridge National Laboratory , 95-CAA-19 (ALJ Apr. 21, 1998), Complainant filed motions for reconsideration more than two years and seven months after entry of an order denying Complainant's motion for default judgment based on Respondent's failure to file a timely request for hearing with the OALJ. The ALJ denied the motions for reconsideration on the ground that they were untimely under Rules 59 and 60 of the Federal Rules of Civil Procedure, as incorporated by 29 C.F.R. § 18.1(a). Complainant then filed a motion to reconsider the denial of reconsideration on the ground that it erroneously applied the time limits stated in Rule 60(b) to an interlocutory order. The ALJ granted the motion, finding that there was clear legal error in the application of Rules 59 and 60 to an interlocutory order.

Nonetheless, the ALJ found that the motions were still untimely under FRCP 54(b) because it was filed after the presiding ALJ had rendered her recommended decision on the merits. The ALJ also found that, assuming argendo that the motions were timely, the ends of justice did not require reconsideration.

PROCEDURE; REOPENING OF RECORD
[N/E DIGEST IX D 1]

Complainant's motion to supplement the record 13 or 14 months after it closed was denied as he did not show that he could not have obtained the evidence prior to the closing of the record. 29 C.F.R. § 18.54(c). Doyle v. Hydro Nuclear Services , 89-ERA-22 (ARB Sept. 6, 1996).

NEW EVIDENCE OFFERED DURING REVIEW BY BOARD
[N/E Digest VIII B 2 b and IX D 1]

In Timmons v. Mattingly Testing Services , 95- ERA-40 (ARB June 21, 1996), the Complainant submitted two affidavits to the Board, asking that they be admitted into evidence and considered on review, or that the case be remanded to the ALJ for the taking of additional evidence.

The Board looked to the provisions of 29 C.F.R. § 18.54(c) and Fed. R. Civ. P. 60(b)(2), and the decision of NLRB v. Jacob E. Decker and Sons , 569 F.2d 357 (5th Cir. 1978) for standards on admission of newly discovered evidence. The Board determined that in regard to the first affidavit, the Complainant could only have become aware of the affiant's potential as a witness through extensive discovery, and that the parties had not been afforded an opportunity for such discovery. The ALJ had limited discovery because of the statutory and regulatory time limits on whistleblower proceedings; the Board indicated that those time limits must yield to a litigant's need to prepare a full and fair presentation of the case. The Board found that the limits on discovery rendered the affiant's testimony "not readily available" prior to hearing. Since the Respondent must be given a meaningful opportunity to respond to affiant's allegations, the case was remanded to the ALJ.

The second affidavit was written by the Complainant. Although there was no evidence that such information was not readily available prior to the hearing, or that the Complainant was excusably ignorant of it prior to the hearing, the Board found that the ALJ's limitation of the parties pre-hearing preparation and the presentation of the evidence at the hearing was improper, and that the post-hearing admission of evidence relevant to the issues raised in the Complainant's affidavit was appropriate "as the conduct of the proceedings before the ALJ interfered with the overall presentation of the Complainant's case." Slip op. at 8-9 (footnote omitted).

IX D 1 Reconsideration; denial when no new evidence or new argument presented

Where the Complainant filed a motion for reconsideration of the Secretary's final Decision and Order, but did not present any newly discovered evidence or make any new arguments concerning the issues raised in the motion, the request for reconsideration was denied. Wagerle v. The Hospital of the University of Pennsylvania, Departments of Physiology and Pediatrics, 93-ERA-1 (Sec'y June 19, 1995).

IX D 1 Motion to reopen

Based on Rule 60(b) of the Federal Rules of Civil Procedure and 29 C.F.R. § 18.54(c), the Secretary denied Complainant's motion to vacate the ALJ's Recommended Decision and Order and remand for a new hearing. The motion was based on a claim that one individual could testify about the case who was bound by a settlement agreement in another ERA case not to "induce any attorney, party, [or] administrative agency" to call that individual as a witness in other ERA cases. The Secretary denied the motion because

in the original hearing, the Complainant failed to carry his burden of proof on evidence that the Secretary concluded would not be affected by the new testimony
Complainant submitted no supporting affidavits, nor otherwise offered any showing that the new testimony "would produce a different result"
Complainant had not shown that the testimony was "new and material evidence" which only became available after the closing of the record (see 29 C.F.R. § 18.54(c))
Complainant's suggestion that the employer engaged in misconduct by entering into the settlement agreement with the new witness did not meet his burden under Rule 60(b)(3) to establish by clear and convincing evidence (1) that the other party engaged in fraud or other misconduct and (2) that this misconduct prevented the moving party from fully and fairly presenting his case.

Hasan v. Nuclear Power Servs., Inc., 86-ERA-24 (Sec'y June 26, 1991).

IX D 1 Same decision in absence of protected activity; Respondent's burden to show

In order to avoid liability in a dual motive case, a respondent must show by a preponderance of the evidence that it would have reached the same decision concerning adverse action even in the absence of the protected activity. Rainey v. Wayne State University, 89-ERA-48 (Sec'y Apr. 21, 1994) ( citing Price Waterhouse v. Hopkins, 490 U.S. 228, 245-47 (1989); Ivory v. Evans Cooperage, Inc., 88-WPC-2 (Sec'y Feb. 22, 1991)).

IX D 1 Intentional litigation strategy

In Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Dec. 8, 1992), the Secretary assumed, without deciding, that Fed. R. Civ. P. 60(b)(6), which permits a court to relieve a party from a final judgment, is available in section 210 administrative proceedings. The complainant requested that the record be reopened because of the "exceptional circumstances" that his former counsel denied his instructions that he be permitted to controvert testimony regarding certain episodes of horseplay. The Secretary concluded that exceptional circumstances had not been shown because nothing in the record indicated the attorney's reasons for withholding the complainant's testimony. The horseplay issue was raised prominently by the respondent's witnesses, and there was no evidence that the complainant's attorney was incapacitated. The Secretary inferred, therefore, that the decision to present no rebuttal testimony was an intentional litigation strategy.

[Editor's note: The case contains a discussion of the standards for application of Rule 60(b)(6), which was not casenoted]

IX D 2 New evidence

The Secretary denied the Complainant's motion to admit new evidence or for remand to consider new evidence in Larry v. The Detroit Edison Co., 86-ERA-32 (June 28, 1991) (Order otion to Admit New Evidence or For Remand to Consider New Evidence). The Complainant sought admission of three documents issued by the Nuclear Regulatory Commission several years after the ALJ issued his Recommended Decision & Order. The new documents purportedly showed that one of the Complainant's supervisors lacked credibility. The Secretary found that the documents should not be admitted because:

(1) they were submitted without seal, certification, or other authenticating or identifying device. 20 C.F.R. § 18.901, 18.902.
(2) although the documents may have come within the hearsay exception for public records and reports, 29 C.F.R. § 18.803, they appeared, to some extent, to comprise "evaluative" reports which require careful scrutiny prior to admission. See Fed. R. Evid. 803(8), Notes of Advisory Committee on Proposed Rules, Exception 8, par. (c).
(3) the representations of the superior at issue should have been a subject of his examination at the hearing before the ALJ. 29 C.F.R. § 18.608(b).

[Nuclear and Environmental Whistleblower Digest IX D 2]
MOTION FOR RECONSIDERATION UNTIMELY

In Hasan v. Enercon Services, Inc. , ARB No. 04-045, ALJ No. 2003-ERA-31 (ARB Jan. 13, 2010), the Complainant's motion for reconsideration was denied where it was filed more four years after the Board issued its Final Decision and Order, and the Complainant presented no rationale justifying reconsideration after the passage of four years.

[Nuclear and Environmental Whistleblower Digest IX D 2]
GROUNDS SUPPORTING RECONSIDERATION; FAILURE TO ESTABLISH THAT NEW EVIDENCE WAS MATERIAL

The ARB is authorized to reconsider earlier decisions. In the absence of its own rule, the ARB has adopted principles federal courts employ in deciding requests for reconsideration. The ARB will reconsider under limited circumstances, including: "(i) material differences in fact or law from that presented to a court of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the court's decision, (iii) a change in the law after the court's decision, and (iv) failure to consider material facts presented to the court before its decision." USDOL/OALJ Reporter at 3 (citations omitted). Knox v. U.S. Dept. of the Interior , ARB No. 03-040, ALJ No. 2001-CAA-3 (ARB Oct. 24, 2005).

In Knox , the Complainant's new evidence was too lacking in credibility to establish that it was material to the central issue in the case -- whether when he expressed concerns or complaints to the Respondent's management officials about asbestos, he had a reasonable belief that the Respondent was violating the CAA by emitting asbestos into the air outside of its buildings. The ARB, thus, did not reach the question of whether the Complainant had failed to submit this evidence before the ALJ because of factors beyond his reasonable control or because of excusable neglect.

[N/E Digest IX D 2]
MOTION TO REOPEN; EVIDENCE MUST BE NEW AND MATERIAL, AND PREVIOUSLY NOT READILY AVAILABLE

In Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5, 93-CAA-1, 94-CAA-2 (ARB May 14, 1998), Complainant moved to reopen the record to include an excerpt from a hearing involving another complainant in another case. The ARB denied the motion, finding that this testimony was not "new and material evidence [which became] available and was not readily available." Slip op. at 4. See 29 C.F.R. § 18.54(a). The motion came after a three-judge panel of the Sixth Circuit had affirmed the ARB; Complainant argued that there was no way to know that an issue relating to the testimony would become the lynchpin of the case. The ARB reviewed the record and found that it was impossible to conclude that the issue could not have been foreseen. In a footnote, the ARB also questioned the relevancy of the testimony sought to be received.

REOPENING OF RECORD; NEW EVIDENCE MUST BE OUTCOME-DETERMINATIVE
[N/E Digest IX D 2]

In James v. Ketchikan Pulp Co ., 94-WPC-4 (ARB June 28, 1996), the Board cited Timmons v. Mattingly Testing Services , 95-ERA-40 (ARB June 21, 1996), for the proposition that material evidence justifying reopening must be outcome-determinative. See also 29 C.F.R. § 18.54(c)(1995).

REOPENING OF RECORD; DOCUMENTS COMING INTO EXISTENCE FOLLOWING CLOSE OF HEARING RECORD
[N/E Digest IX D 2]

In Mosbaugh v. Georgia Power Co., 91-ERA-1 and 11 (Sec'y Nov. 20, 1995), the Complainant sought to have certain NRC documents relating to his whistleblower case, but which only came into existence after the close of the record before the ALJ, admitted into evidence. The Secretary, although stating that he had not relied on those documents, admitted them into the record for whatever probative value they might have. See 18 U.S.C. § 18.54(c). In regard to an NRC-OI Memorandum and Report of Investigation, the Secretary noted the Memorandum of Understanding Between NRC and Department of Labor, Employee Protection, 47 Fed. Reg. 54585 (Dec. 3, 1982), in which the agencies agreed to "timely exchange of information in areas of mutual interest."

IX D 2 Motion to reopen; affidavit attesting to testimony at arbitration hearings where no transcript available

In Lassin v. Michigan State University, 93-ERA-31 (Sec'y June 29, 1995), the Complainant sought the reopening of the record to receive his and his attorney's affidavits attesting to testimony given by employees of the Respondent at an arbitration hearing conducted after the closing of the record in the case. A transcript of the arbitration hearing was not available. The Secretary noted that generally, arbitral proceeding and decisions concerning discrimination are considered by the Secretary in employee protection proceedings, given the strong federal policy favoring arbitration agreements arrived at through collective bargaining procedures. Nonetheless, the Secretary concluded that since what was being offered was simply one party's recounting of the testimony, which is inherently unreliable, the record would not be reopened.

IX D 2 Reopening of record based on new evidence

In Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Dec. 8, 1994) (order denying requests for reconsideration), the Complainant moved for reconsideration based on new evidence. The Secretary held that under 29 C.F.R. § 18.54(c), the moving party must show that the newly discovered evidence was not available at the time of the hearing due to excusable ignorance. Boyd v. Belcher Oil Co., 87-STA-9 (Sec'y Dec. 2, 1987), slip op. at 3; McDaniel v. Boyd Bros. Transp., 86-STA-6 (Sec'y Mar. 16, 1987), slip op. at 4.

The Secretary declined to reopen the record because he found that the new evidence was available at the time of the hearing, and that it should have been presented at that time.

In addition, the Secretary based the decision not to reopen on the finding that the purportedly new evidence was not material to the issue upon which the decision on the merits was based. See Gunderson v. Nuclear Energy Services, Inc., 92-ERA-48 (Sec'y Jan. 19, 1993), slip op. at 6.

IX D 2 Motion to reopen; newly discovered evidence

In Hill v. Tennessee Valley Authority, 87-ERA-23 (ALJ June 26, 1991) (order), the ALJ denied the complainants' Emergency Motion to Reopen Record in this Matter Based on Newly Discovered Evidence That Was Improperly Withheld by Respondent Tennessee Valley Authority. The newly discovered evidence was an unsigned, draft report of an investigation conducted by the Wage and Hour Division, which, in the complainants' view, reveal significant discrepancies in the testimony of certain witnesses. The complainants sought an opportunity for further cross- examination and the calling of additional witnesses.

The ALJ concluded that the complainants did not find new admissible evidence but a paper which suggests possibilities of impeachment on collateral issues. Such possibilities did not provide a sufficient reason to reopen the record four months after the filing of extensive briefs by both parties. Cf. Baynum v. Chesapeake & Ohio Ry., 456 F.2d 658, 662 (6th Cir. 1972); Scutieri v. Paige, 808 F.2d 785, 793 (11th Cir. 1987).

IX D 2 Newly discovered evidence

Additional evidence is not "newly discovered," i.e., in existence but discovered after the hearing. See Boyd v. Belcher Oil Co., 87-STA-9 (Sec'y Dec. 2, 1987). Bassett v. Niagara Mohawk Power Corp., 85-ERA-34 (Sec'y Sept. 28, 1993) (Complainant proffered testimony in a separate ERA proceeding to rebut the ALJ's finding that injury from an adverse employment action was speculative; this evidence was not relevant in view of the Secretary's declining to adopt the ALJ's analysis).

IX.D.3. Reconsideration

[Nuclear and Environment Digest IX D 3]
MOTION FOR RECONSIDERATION DENIED WHERE IT MERELY REITERATED ARGUMENTS ALREADY CONSIDERED BY THE ARB IN ITS ORIGINAL DECISION

In Friedman v. Columbia University , ARB No. 12-089, ALJ No. 2012-ERA-8 (ARB Jan. 22, 2014), where the Complainant merely reiterated arguments in a motion for reconsideration that had already been considered in the ARB's original decision, the ARB declined to address them again on reconsideration, and therefore denied the Complainant's motion for reconsideration.

[Nuclear and Environment Digest IX D 3]
RECONSIDERATION; ARB'S EXERCISE OF DISCRETION TO REOPEN WHERE COMPLAINANT HAD NOT KNOWN ABOUT BRIEFING ORDER

In Coupar v. UNICOR (Federal Prison Industries) , ARB No. 05-108, ALJ No. 2005-WPC-2 (ARB Apr. 22, 2008), shortly after dismissing the Complainant's appeal for failure to file a brief, the Board received mail indicating that the Complainant, who was incarcerated, had been transferred to a different prison and had not known about the Board's briefing order. The Board exercised its discretion to reconsider, and issued a new briefing schedule.

In Smith v. Tennessee Valley Authority, 89-ERA-12 (Sec'y June 2, 1994) (order), the ALJ had issued a Recommended Decision and Order finding that Complainant was unlawfully discriminated against in retaliation for activity protected under the ERA. The Secretary had issued on Order Granting Stay at the parties's request pending issuance of the ALJ's supplemental decision on damages. Subsequently, the Secretary issued an order requesting that the parties indicate the status of the case and show cause why the Stay should not be lifted. The ALJ issued a emorandum requesting that the Order Granting Stay remain in effect because he had reopened the record in the case and was considering a Motion for Summary Judgment filed by the Respondent which could alter the initial R.D. and O. pending before me for review. The ALJ later issued a Supplemental Recommended Decision and Order Granting Motion for Summary Judgment, finding finding that Respondent established that Complainant wilfully falsified and failed to report medical conditions on TVA's medical exam, and that such misrepresentation would have caused Complainant's nonselection for position he sought at TVA.

The Secretary found that the case was now ripe for review, and lifted the stay.

[Nuclear and Environmental Whistleblower Digest IX D 3]
MOTION FOR RECONSIDERATION BY ALJ; AUTHORITY; TIME LIMITS

In Hannum v. Fluor Hanford, Inc. , 2003-ERA-25 (ALJ Apr. 30, 2004), the ALJ concluded that he did not have the authority to reconsider because he no longer had jurisdiction over the matter once he issued the recommended decision and order (albeit acknowledging in a footnote that there may be authority to correct clerical errors or judgments which had been issued due to inadvertence or mistake).

[Nuclear and Environmental Whistleblower Digest IX D 3]
MOTION FOR RECONSIDERATION BY ALJ; AUTHORITY; TIME LIMITS

In Immanuel v. C&D Concrete , 2003-CAA-18 (ALJ Nov. 17, 2004), the Complainant filed a motion for reconsideration by the ALJ as part of his petition for ARB review. The ALJ noted that relevant caselaw suggests that an ALJ does not have jurisdiction to reconsider after issuance of the recommended decision and order, and that, assuming that he had such authority, the filing deadlines for such motions in similar contexts is often determined with reference to the deadline for filing a petition for review. E.g., Fowler v. Butts , 92-WAB-01, 1992 WL 515932 at *2 (June 25, 1992). The ALJ concluded, therefore, that applying the 10 day deadline for filing petitions for review at 29 C.F.R. § 24.8(a), the Complainant's motion for reconsideration was not timely, it being filed well beyond that 10 day period.

[ Editor's note : The whistleblower regulations drafted for AIR21, SOX and PSI cases indicate that OSHA believes that ALJ's have the authority to reconsider within 10 days following issuance of the initial decision and order. See 29 C.F.R. §§ 1979.110(c), 1980.110(c), 1981.110(c).]

See also Steffenhagen v. Securitas Sverige, AR , 2003-SOX-24 (ALJ Aug. 13, 2004) (ALJ finding that she did not have jurisdiction to rule on a motion to reconsider when the Complainant also filed on the same day an appeal to the ARB).

[Nuclear and Environmental Whistleblower Digest IX D 3]
MOTION FOR RECONSIDERATION; AFFIRMANCE OF ARB DECISION BY COURT OF APPEALS EXTINGUISHES ARB'S AUTHORITY TO RECONSIDER

In Saporito v. Florida Power & Light Co. , ARB No. 04-079, ALJ Nos. 1989-ERA-7 and 17 (ARB Dec. 17, 2004), appeal docketed sub nom, Saporito v. U.S. Dept. of Labor , No. 05-10749-DD (11th Cir.), the Complainant filed objections, some phrased as motions for "reconsideration," of the ARB's 1998 decision in the matter. The ARB's decision had been summarily affirmed by the Eleventh Circuit Court of Appeals in 1999. Saporito v. Florida Power & Light Co. , ARB No. 98-008, ALJ Nos. 1989-ERA-7, 1989-ERA-17 (Aug. 11, 1998), aff'd , 199 F.3d 130 (11th Cir.1999) (unpublished table decision), reh'g en banc denied , 210 F.3d 395 (11th Cir. 2000). The ARB denied the Complainant's motions, finding that "[w]hatever authority we had to reconsider our own order was extinguished long ago by the Court of Appeals' conclusive disposition."

[Nuclear and Environmental Whistleblower Digest IX D 3]
RECONSIDERATION; AUTHORITY OF ARB; PETITION FOR EN BANC RECONSIDERATION TREATED AS MOTION FOR RECONSIDERATION BY ORIGINAL PANEL

The Board has authority to reconsider its decisions arising under the ERA. Kelly v. Lambda Research, Inc. , ARB No. 02-075, ALJ No. 2000-ERA-35 (ARB May 6, 2004), citing Macktal v. Brown and Root, Inc ., ARB Nos. 98-112, 98-112A, ALJ No. 1986-ERA-23, Order Granting Reconsideration (ARB Nov. 20, 1998). In Kelly , the Complainant petitioned for reconsideration en banc . The matter, however, was not considered en banc , but by the panel that originally decided the case.

[Nuclear & Environmental Whistleblower Digest IX D 3]
RECONSIDERATION OF FINAL ORDER; AUTHORITY AND STANDARD

In Macktal v. U.S. Dept. of Labor , No. 01 60195 (5th Cir. Apr. 8, 2002) (case below ARB No. 98 112, ALJ No. 1986 ERA 23), the Fifth Circuit held that the ARB correctly concluded that it had the inherent authority to reconsider a decision under the whistleblower provision of the ERA. The court noted that "[i]t is generally accepted that in the absence of a specific statutory limitation, an administrative agency has the inherent authority to reconsider its decisions." The court noted that the ERA does not contain any limitation on discretionary review.

In regard to reviewing an agency's decision to reconsider, the court wrote:

The reasonableness of an agency's reconsideration implicates two opposing policies: "the desirability of finality on one hand and the public's interest in reaching what, ultimately, appears to be the right result on the other." Civil Aeronautics Board v. Delta Airlines, Inc ., 367 U.S. 316, 321, 81 S.Ct. 1611, 1617 (1961). An agency's inherent authority to reconsider its decisions is not unlimited. An agency may not reconsider its own decision if to do so would be arbitrary, capricious, or an abuse of discretion. 5 U.S.C. § 706(2)(A). Reconsideration must also occur within a reasonable time after the first decision, and notice of the agency's intent to reconsider must be given to the parties. See Dun & Bradstreet Corp. , 964 F.2d at 193; Bookman v. United States , 453 F.2d 1263, 1265 (Ct. Cl. 1972).

Applying this standard, the court ruled that the ARB properly reconsidered a decision that was based on failure of the Respondent to file a brief when the Respondent presented evidence that the brief had been timely filed, but with the Benefits Review Board rather than the ARB.

[Nuclear & Environmental Digest IX D 3]
SEPARATION OF POWERS; RULE 60(b) NOT AVAILABLE TO REOPEN CASE FULLY AND FINALLY DECIDED BY COURT OF APPEALS

In Varnadore v. Oak Ridge National Laboratory , ARB No. 99-121, ALJ Nos. 1992-CAA-2 and 5, 1993-CAA-1, 1994-CAA-2 and 3, 1995-ERA-1 (ARB July 14, 2000), the ARB considered whether it has the authority under Fed. R. Civ. P. 60(b), to admit new and material evidence, and to reconsider previous decisions of the Secretary and the Board, where the Sixth Circuit had previously dismissed appeals of Complainant's case and Complainant had not filed a petition for certiorari with the Supreme Court. The ARB concluded that although 29 C.F.R. § 18.1(a) provides for reference to the Federal Rules of Civil Procedure in situations not provided for or controlled by the Rules of Practice and Procedure for the Office of Administrative Law Judges, Article III of the U.S. Constitution prevents the Department of Labor from reopening a case fully and finally decided by the court of appeals and not remanded for further proceedings. The ARB also concluded that principles of finality, and specifically claim preclusion, barred the instant attempt to perpetuate the case. The Board observed that claim preclusion doctrine is concerned with bringing an end to litigation, and that subsequent changes in the law, the discovery of additional facts and considerations of fairness do not matter after the parties have had a full and fair opportunity to litigate the case.

The Board also held that even if constitutionally permissible to invoke Rule 60(b) under the circumstances of the case, the extremely narrow exception to principles of finality represented by Rule 60(b) was not shown to be justified in invoking in the case sub judice .

One member of the Board concurred only in the ruling that the standards for invocation of Rule 60(b) were not met. The concurrence did not join the majority's ruling that invocation of Rule 60(b) is barred by constitutional constraints or by the doctrine of res judicata/claim preclusion.

[Nuclear & Environmental Digest IX D 3]
MOTION TO REOPEN; SUBSEQUENT SUPREME COURT AUTHORITY

In Varnadore v. Oak Ridge National Laboratory , ARB No. 99-121, ALJ Nos. 1992-CAA-2 and 5, 1993-CAA-1, 1994-CAA-2 and 3, 1995-ERA-1 (ARB July 14, 2000), the ARB found that two Supreme Court decisions rendered subsequent to the final decision of the court of appeals in Complainant's cases were not applicable to Complainant's cases, but that even if they were, the cases should not be reopened on this basis, because of the principle that "a subsequent change in the law cannot in itself constitute extraordinary circumstances sufficient to justify vacating a final judgment."

[Nuclear and Environmental Whistleblower Digest IX D 3]
AUTHORITY OF ARB TO RECONSIDER

In Leveille v. New York Air National Guard , ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB May 16, 2000), the ARB held that it has the inherent authority to reconsider its decisions in cases involving complaints under the employee protection provisions of the TSCA, SDWA, CAA, SWDA, CWA (aka FWPCA), and CERCLA.

[Nuclear and Environmental Whistleblower Digest IX D 3]
AUTHORITY OF ALJ TO RECONSIDER DECISION

In Mourfield v. Frederick Plaas & Plaas, Inc. , 1999-CAA-13 (ALJ Apr. 25, 2000), the ALJ reviewed the applicable statutes and regulations and found no express authority for an ALJ to reconsider a recommended decision and order. The ALJ also reviewed the decisional law, and concluded that it suggested that an ALJ does not have jurisdiction over a matter once the recommended decision and order has been issued. He found that once he issued his Recommended Decision and Order, jurisdiction passed to the ARB. Accordingly, he denied the motion for reconsideration.

[Nuclear & Environmental Digest IX D 3]
MOTION TO REOPEN FILED WITH ALJ OTHER THAN PRESIDING JUDGE

In Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5, 93-CAA-1, 94-CAA-2 and 3 (ALJ Dec. 28, 1998), Complainant filed motions to reopen and supplement the record in several whistleblower complaints originally presided over by other, now retired ALJs. The ALJ with whom Complainant filed the motions had presided over an ERA complaint filed by Complainant, but the instant motions appeared only to relate to the other complaints.

The ALJ denied the motions because (1) the complaints had been dismissed by the 6th Circuit in Varnadore v. Secretary of Labor , 141 F.3d 625 (6th Cir. 1998), and there had been no further appeal or remand, and (2) he had no jurisdiction over the complaints that were the subject of the motions.

[Nuclear & Environmental Digest IX D 3]
RECONSIDERATION; ARB'S AUTHORITY

Noting that the ERA does not address the issue of reconsideration of final orders in the whistleblower protection cases within the Secretary of Labor's jurisdiction, and reviewing relevant caselaw, the ARB held that unless reconsideration by the ARB would interfere with, delay or otherwise adversely affect accomplishment of the Act's safety purposes and goals, it has inherent authority to reconsider a final ERA order. Macktal v. Brown & Root, Inc. , 86-ERA-23 (ARB Nov. 20, 1998). The ARB noted in its discussion, however, that an agency never has authority to reconsider the wisdom of its final order merely because of a change in agency policy, citing American Trucking Ass'n v. Frisco Transp. Co. , 358 U.S. 133, 146 (1958).

The ARB found incorrect the reasoning of decisions such as Bartlik v. United States Dept. of Labor , 1994 WL 487174, *3 (6th Cir. 1994), and vacating order , 34 F.3d 368 (1994), and en banc decision , 62 F.3d 163 (1995), where it was suggested that "inherent authority" to reconsider final adjudicative orders cannot exist, because adjudicative agencies have only such power as is expressly delegated to them by Congress.

In Macktal , the ARB had issued an order adopting the ALJ's recommendations on an award of attorney's fees. The ARB was under the impression at the time that Respondent had not filed a brief; however, Respondent had timely submitted a brief that was filed with the BRB. The ARB indicated that the fault was partially Respondent's for naming the clerk of the BRB on its address label, but that DOL was also partially at fault, because such misdeliveries are usually re-routed to the proper office. The ARB found that reconsideration was appropriate under the circumstances, even though Complainant would be temporarily deprived of a favorable fee decision and may eventually be left with a less personally desirable outcome, given the paramount interest of due process.

[N/E Digest IX D 3]
ALJ'S AUTHORITY TO RECONSIDER

In Willy v. The Coastal Corp. , 85-CAA-1 (ALJ Dec. 4, 1997), the ALJ drew an assumption that he could recommend correction of a clear error in an earlier recommended decision.

IX D 3 ALJ's continuing jurisdiction over protective order

See Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995), slip op. at 6- 7, casenoted at VII A 5 in regard to the ALJ's continuing jurisdiction over protective orders.

IX D 3 Secretary's authority to reconsider

In Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Dec. 8, 1994) (order denying requests for reconsideration), the Secretary assumed that he had the inherent authority to reconsider final decisions. He declined to follow the Sixth Circuit's ruling in Bartlik v. United States Dept. of Labor, 34 F.3d 365 (6th Cir. 1994) to the contrary because the instant complaint did not arise in that Circuit.

IX D 3 Secretary's authority to reconsider

In Guity v. Tennessee Valley Authority, 90-ERA-10 (Sec'y Jan. 24, 1994), the Secretary dismissed a case without prejudice and with leave to Complainant to file a motion to reopen within 30 days of Complainant's treating physician or psychologist's declaration of Complainant's competence to litigate the case. The motion is to demonstrate by a preponderance of the medical evidence that Complainant had been mentally incompetent throughout the proceeding, that his attorney was unable to prosecute this case without Complainant's assistance which was precluded by his incompetence, and that such motion is filed within 30 days of his achieving competence. The Secretary permitted one year for the filing of such a motion, and ordered that if no such motion is filed timely, the dismissal shall be with prejudice. The motion would be filed with the OAA on behalf of the Secretary.

This Order is substantially in conformance with the recommendation of the Deputy Chief ALJ, who had recommended dismissal for failure to prosecute after issuing a number of orders attempting to get the case to hearing after a delay of several years based on Complainant's incompetence.

The Secretary noted that the ALJ assumed that the Secretary has the authority to reopen final decisions in ERA cases such as this. He also noted that he had recently ruled in Bartlik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y July 16, 1993), that there is considerable doubt (but did not resolve) whether the Secretary has the authority to reconsider a final decision. The Secretary distinguished Bartlik on the ground that here there is no issue of a request for reopening on a ground of material error. Rather, the dismissal without prejudice with leave to seek reopening is a means to ameliorate the admittedly harsh sanction of dismissal with prejudice for failure to prosecute.

The Secretary held that an administrative agency's power to control its docket is similar to that of a court. Billings v. Tennessee Valley Authority, 89-ERA-16 (Sec'y July 29, 1992). It is within the power of a court to dismiss for failure to prosecute where the plaintiff's mental incompetence has lead to stagnation in the case. See Mavy-Amenberg v. Marsh, 1991 U.S. App. LEXIS 20919 (9th Cir. 1991) (reported as table case at 942 F.2d 790). The Department of Labor has the inherent authority not to allow a case to remain open in perpetuity.

The Secretary also held that although it is not necessary to show prejudice to the defendant as a basis for dismissal for failure to prosecute, he agreed with the ALJ that the passage of time could hamper TVA's ability to prepare a defense.

The Secretary noted that a dismissal for failure to prosecute is with prejudice and thus bars a complainant from reinstituting the case. Ball v. City of Chicago, 2 F.3d 752, 753 (7th Cir. 1993). It is considered a harsh sanction, Id. at 754, and a court should dismiss for failure to prosecute only if it has determined that a less severe remedy would not be effective. Id. at 758, and cases there cited. The Secretary agreed with the ALJ that the circumstances in the instant case made it unlikely that lesser sanctions would be effective.

IX D 3 Authority of Secretary to reconsider

In Gillilan v. Tennessee Valley Authority, 89-ERA-40 (Sec'y Nov. 29, 1994) (order denying motion to reconsider), the Secretary denied a motion to reconsider because the case arose in the Sixth Circuit, which has held that the Secretary has no statutory or inherent authority to reconsider his decisions under the ERA. See Bartlik v. United States Dept. of Labor, 34 F.3d 365 (6th Cir. 1994) (available at 1994 U.S. App. LEXIS 24497); see also Bartlik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y July 16, 1993), slip op. at 3-4.

IX D 3 New evidence not considered if it would not alter outcome

In Rainey v. Wayne State University, 89-ERA-48 (Sec'y Apr. 21, 1994), Complainant filed a motion to reopen the record for the submission of additional documentary evidence. The Secretary denied the motion because the new evidence could not have altered the outcome of the decision. The new evidence related to whether complainant's safety complaints lead to findings of actual violations by Respondent -- something Complainant had no burden to show.

The Secretary declined to decide whether he has the authority to reopen the record to receive new evidence, in appropriate circumstances, absent a remand to the ALJ for further proceedings.

IX.D.3. ALJ's authority to reconsider

In Rex v. Ebasco Services, Inc., 87-ERA-6 and 40 (ALJ Apr. 13, 1994) (memorandum), the Deputy Chief Judge declined to rule on a motion for clarification of the Secretary's order in Rex v. Ebasco Services, Inc., 87-ERA-6 and 40 (Sec'y ar. 4, 1994), and for a rescinding of the Deputy Chief Judge's emorandum to the OALJ judges regarding that case. In Rex, the Secretary had directed the Chief ALJ to inform the judges of the original ALJ's recommendation of sanctions against Complainant's attorneys. The Deputy Chief Judge noted that subsequent to issuance of a recommended decision and order, jurisdiction passes from the presiding administrative law judge to the Secretary of Labor. See Tankersley v. Triple Crown Services, Inc., 92-STA-8 (Sec'y Feb. 18, 1993), and that since Rex had not been remanded to the administrative law judge, OALJ had no authority to rule on the exigent motion. The Deputy Chief Judge, however, also noted that, although the motion was not properly before OALJ as a procedural matter, some of the concerns raised in it regarding his memorandum to the judges were well taken, and notified the parties that he had issued a memorandum of clarification to the Department's ALJs.

IX.D.3. Secretary's authority to reconsider

In Wampler v. Pullman-Higgins Co., 84-ERA-13 (Sec'y June 13, 1994), the Secretary denied a motion for reconsideration without discussion of his authority to consider motions for reconsideration.

IX D 3 Reinstatement of complaint

In Brown v. Holmes & Narver, Inc., 90-ERA-26 (Sec'y June 29, 1993), the Secretary ruled that an earlier decision in which the ALJ's recommendation to grant Complainant's motion for dismissal without prejudice was affirmed was based on the lack of knowledge that Complainant had withdrawn the motion. Since dismissal was not voluntary, the Secretary decision was vacated and the complaint reinstated.

The original dismissal of Brown's complaint resulted from a convoluted procedural history. A jurisdictional question arose based on the fact that Respondent asserted not to be an "employer" under the ERA because under the statutory language in effect at the time it was a contractor to the DOE, and did not have an NRC license and had not applied for one. In ruling on a motion to dismiss, the ALJ held that Respondent was a covered employer. In ruling on a motion to reconsider, the ALJ denied a motion to certify the jurisdictional question to the Secretary, but issued a recommended order based on a joint alternative motion to allow dismissal without prejudice for the purpose of allowing Complainant to pursue state law remedies for retaliatory discharge. While the recommended decision was pending, Complainant, faced with a looming state law statute of limitations, filed an action in state court, Respondent removed to U.S. District Court, and notwithstanding having sought dismissal of the administrative complaint, asked the District Court to dismiss the state law action because federal administrative remedies were adequate. The District Court dismissed the state law cause of action without prejudice to Complainant's pursuing federal administrative remedies.

Shortly thereafter, Complainant filed a motion to withdraw the motion to dismiss, and the ALJ forwarded the withdrawal to the Secretary. In the meantime, however, unaware of the motion to withdraw, the Secretary issued a Final Decision & Order adopting the affirming the ALJ's dismissal of the complaint without prejudice.

The District Court reheard the motion to dismiss the state law claims, and asked Complainant to make sure he had exhausted all remedies before DOL prior to continuing in District Court. Thereafter, Complainant moved the Secretary to vacate the Order dismissing the complaint.

[Editor's note: In Bartik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y July 16, 1993), the Secretary expressed doubt whether he could reconsider a final decision. But here he's done just that (or possibly reopened the complaint) without discussion of his authority to do so.]

9 d 3
IX D 3 Secretary's authority to reconsider

In Bartik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y July 16, 1993) (order denying motion for reconsideration), the Secretary stated "considerable doubt ... that in the absence of statutory authority, the Secretary has the authority under the Federal Rules of Civil Procedure to reconsider a final decision." The Secretary noted that in Young v. CBI Services, Inc., 88-ERA-8(Sec'y Dec. 8, 1992) and DeFord V. TVA, 81-ERA-1 (Sec'y Aug. 15, 1984), it was only assumed that there was authority for the Secretary to reconsider a final decision.

For purposes of ruling on the exigent motion to reconsider, the Secretary assumed that he had inherent authority to reconsider his decisions as any other agency, and finding that he had not erred in any material respect, denied the motion.

[Editor's note: I do not think this can be read as a final decision by the Secretary about authority to reconsider under either the Federal Rules or an inherent authority. It skirts the issue by finding that the motion should be denied whether he has the authority or not.]

IX D 3 Reconsideration by Secretary

In Tritt v. Fluor Construction, Inc., 88-ERA-29 (Sec'y Dec. 3, 1993), the Secretary denied reconsideration of his earlier Decision and Order of Remand in which he found Respondent had violated the employee protection provision of the ERA when it discharged Complainant. The Secretary noted that the remand decision had noted that the parties did not file briefs before him, but Respondent maintained in its motion for reconsideration that it had filed a brief and attached a copy.

The Secretary considered the entire record, including the brief, and denied reconsideration because the brief contained no new arguments or evidence.

[Editor's note: It is not entirely clear, but I think the Secretary actually granted the motion for reconsideration, but affirmed his prior decision.]

IX.D.3. Lack of statutory authority for the Secretary to reconsider decisions

In Bartlik v. United States Dep't of Labor, 19994 U.S. App. LEXIS 24497, 1994 FED App. 319 (6th Cir. 1994), the Sixth Circuit dismissed the complainant's second petition for lack of jurisdiction because the Secretary did not have statutory authority to reconsider his decisions in the first place; thus, the petitioner's motion for reconsideration filed with the Secretary was a nullity. In considering the petition, the Secretary had acted on an assumption that he had the inherent power to reconsider his decisions. The court found this reasoning to be "erroneous," stating that "an agency has no inherent authority of reconsideration in the absence of statutory authority." 1992 U.S. App. LEXIS at 11. In forming its decision, the court relied on Civil Aeronautics Board v. Delta Airlines, 367 U.S. 316 (1961), which held that "the determinative question is not what the [agency] thinks it should do but what Congress has said it can do. . . . An agency's authority to reconsider its actions is derived solely from its organic statute or other enabling legislation." Id. 322, 334. The court did recognize, however, that the Secretary does have the authority to correct "purely inadvertent ministerial errors," as noted its decision in Upjohn Co. v. Pennsylvania R.R. Co., 381 F.2d 4, 5 (6th Cir. 1967).

IX.E. Remand to Wage & Hour

Carter v. B & W Nuclear Technologies, Inc., 94- ERA-13 (Sec'y Sept. 28, 1994) (order denying interlocutory appeal), the ALJ concluded that under the circumstances presented it was appropriate to join TVA as a party respondent in this case, pursuant to Rule 19(a) of the Federal Rules of Civil Procedure. TVA sent a letter to the Secretary challenging the ALJ's pre-hearing order. Although TVA asserted that it was not filing an interlocutory appeal, the Secretary stated that:

Pursuant to the regulations at 29 C.F.R. Part 24, it is clear that the ALJ has jurisdiction over this matter until he issues a recommended decision which will be forwarded to the Secretary for issuance of a final decision. As governed by the regulations at 29 C.F.R. Part 24 and Part 18, the ALJ is considered to have all the powers necessary to the conduct of fair and impartial hearings. There is no provision for interlocutory appeals to the Secretary either in the regulations implementing the ERA, 29 C.F.R. Part 24, or in the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 C.F.R. Part 18. Respondent's request that the Secretary make any findings to the contrary, in advance of the ALJ's hearing on the merits and issuance of a recommended decision on the merits, is in the nature of an interlocutory appeal.

The Secretary then declined to entertain TVA's letter/interlocutory appeal.

In a footnote, the Secretary stated that even if he were "to exercise any authority I might have to entertain an interlocutory appeal, I would not grant TVA's request to remand the case to the Wage and Hour division for further consideration of whether they are appropriately named as a co-respondent. The ALJ has provided adequate justification for finding that TVA was sufficiently named in Complainant's initial complaint and TVA has been provided an adequate opportunity for discovery prior to the hearing."

IX.E. Whether record can be reopened on remand

In Tritt v. Fluor Constructors, Inc, 88-ERA-29 (ALJ Aug. 29, 1994), the ALJ issued a recommended decision on remand regarding back pay and whether the complainant was entitled to an award of compensatory damages. An initial issue addressed by the ALJ was whether to reopen the record for purposes of receiving evidence in these areas given that the Secretary's order was silent on that question. The ALJ noted that every remand mandate should be strictly followed within the confines of the mandate order. Where the mandate remands the case with directions to accomplish a certain act, but without indicating how the act shall be performed, there exists a large measure of discretion in the performance. The ALJ concluded that it was within his discretion to decide as to whether on remand the record should be reopened for receiving additional evidence solely on the damage questions, noting that to reopen the record to receive additional evidence, it must be shown that there would be no prejudice to the defendant and the failure to present evidence on the back pay issue is excusable. The ALJ reviewed the circumstances and concluded that a record reopening on the damage questions would prejudice Fluor, and that the record of this case should be reopened since due to Tritt's pro se status and inexperience in these matters, his failure to make a proper record in the earlier proceeding was excusable.

IX E Authority to order remand to Wage and Hour

In Egenrieder v. Metropolitan Edison Co., 85-ERA-23 (Sec'y Apr. 20, 1987), the Secretary found that the ALJ, in recommending that all of Complainant's complaint except conduct occurring within 30 day prior to the filing of the complaint, be found untimely, had failed to consider the question of continuing violation.

The ALJ had recommended a remand to Wage and Hour for an investigation of the 30-day period prior to filing which had not been performed before because Wage and Hour found the entire complaint untimely.

The Secretary noted that neither the ERA nor the regulations specifically contemplate a remand for further investigation, and stated that

While the initial inquiry should have considered the continuing violation claim, the parties are entitled to de novo consideration of this case and all extant issues once a hearing is requested before the Office of Administrative Law Judges. Accordingly, under the circumstances of this case, further review of this matter before the ALJ seems appropri- ate.

IX E Appropriateness of remand where timeliness put into issue

In Garcia v. Ebasco Services, Inc., 87-ERA-26 (Sec'y July 11, 1989), the Secretary adopted the ALJ's recommendation that the case be remanded to Wage and Hour for development of the evidence regarding whether the complaint was timely filed, or equitable grounds for tolling existed, and whether the request for a hearing was timely. The ALJ had issued an Order to Show Cause regarding the timeliness issues, and the Complainant had responded putting some of the facts in dispute. The Respondent did not respond to the Order to Show Cause.

IX F Ex parte communications

In Holub v. H. Nash Babcock, Babcock & King, Inc., 93-ERA-25 (ALJ June 24, 1993) (prehearing order), the ALJ's law clerk contacted the Complainant's counsel late in the afternoon on a Thursday to discuss scheduling matters, including the topic of whether statutory and regulatory deadlines would be waived. The Complainant's counsel wrote a letter explaining his position on Friday. The law clerk did not contact counsel for the Respondent until the middle of the afternoon on the following Tuesday. Apparently having already received Complainant's counsel's letter, Respondent's counsel was "taken aback" and believed that the law clerk had engaged in ex parte communications, intimating that the Respondent had been prejudiced by such contacts.

The ALJ ruled that, pursuant to 29 C.F.R. § 18.38(a), communications relating solely to scheduling are not considered ex parte communications, provided that the other party is given the opportunity to respond. She ruled that scheduling includes the topic of whether the deadlines would be waived, and noted that the Respondent had "manifestly" taken advantage of the opportunity to respond. Accordingly, she rejected the assertion of prejudice resulting from the law clerk's communications.

IX F Secretary's treatment of ex parte communications

In Wells v. Kansas Gas & Electric Co., 85-ERA- 22 (Sec'y Mar. 21, 1991), members of the NRC wrote to the Secretary of Labor concerning the case. The Secretary stated that "as required by the Administrative Procedure Act (APA), 5 U.S.C. § 557(d)(1) (1982), these communications were placed 'on the public record' and copies were provided to the parties." The Secretary did not consider the letters in determining the case.

The same procedure was followed by the Secretary in Ryan v. Niagara Mohawk Power Co., 85-ERA-24 (Sec'y Mar. 7, 1986), in which Complainant sent personal letters to the Secretary acting directly and not through counsel.

IX G Service

SERVICE; EPA REQUESTS NOT TO BE SERVED
[N/E Digest IX G]

The Office of Compliance and Monitoring Assurance of the Environmental Protection Agency has asked that it not be served with copies of documents concerning environmental or nuclear employee protection proceedings before the Department of Labor.

[Nuclear and Environmental Digest IX.G.]
ADVERSE ACTION; RESPONDENT SERVICE OF ALJ BY EXPRESS MAIL, BUT COMPLAINANT ONLY BY REGULAR 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), Complainant alleged, inter alia , that his rights had been violated because Respondents filed motions to dismiss with the ALJ by Federal Express, but only served him by regular mail. The ARB held that such use of express and regular mail "as a matter of law it cannot constitute discrimination with respect to 'compensation, terms, conditions, or privileges of employment . . . .' 42 U.S.C. §7622(a)," and therefore dismissed this complaint.

SERVICE; NRC REQUESTS SERVICE OF BOTH NRC OFFICE OF ENFORCEMENT AND NRC REGIONAL OFFICE
[N/E Digest IX G]

The Nuclear Regulatory Commission continues to request that it be served with copies of DOL decisions pursuant to Section 211 of the Energy Reorganization Act. In addition to service of NRC headquarters, the NRC requests that DOL ALJs place the appropriate NRC regional office on the service list for Section 211 cases. Letter from NRC Director of Enforcement to DOL Acting Chief Administrative Law Judge (Mar. 6, 1996). The NRC points of contact are:

Headquarters: Serve in all cases; Director, Office of Enforcement; U.S. Nuclear Regulatory Commission; Washington, D.C. 20555; 301-415-2741
Region I: For cases in Maine, New Hampshire, Vermont, New York, Massachusetts, Rhode Island, Connecticut, Pennsylvania, New Jersey, Delaware, Maryland, and the District of Columbia; NRC Enforcement Coordinator; 475 Allendale Road; King of Prussia, Pennsylvania 19406-1415; 610-337-5000
Region II: For cases in Virginia, West Virginia, Kentucky, Tennessee, North Carolina, South Carolina, Georgia, Alabama, Mississippi, and Florida; NRC Enforcement Coordinator; 101 Marietta Street, NW, Suite 2900; Atlanta, Georgia 30323-0199; 404-311-4503
Region III: For cases in Michigan, Ohio, Indiana, Illinois, Wisconsin, Minnesota, Iowa, and Missouri; NRC Enforcement Coordinator; 801 Warrenville Road; Lisle, Illinois 60532-4351; 708-829-9500
Region IV: For cases in Arkansas, Louisiana, North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Texas, New Mexico, Colorado, Utah, Wyoming, Idaho, Montana, Arizona, California, Nevada, Oregon, Washington, Hawaii, and Alaska; NRC Enforcement Coordinator; 611 Ryan Plaza Drive, Suite 400; Arlington, Texas 76011-8064; 817-860-8100

FABRICATION OF EVIDENCE; AVAILABLE SANCTIONS
[N/E Digest IX H]

In Straub v. Arizona Public Service Co. , 94- ERA-37 (Sec'y Apr. 15, 1996), the ALJ stated that the record plainly showed that the Complainant fabricated evidence. Because the ALJ did not impose any sanctions, the Secretary found it unnecessary to review this finding except insofar as it pertained to credibility. The Secretary, however, observed that the ALJ could have imposed sanctions pursuant to 29 C.F.R. §§ 18.34(g)(3), 18.36 and 18.38, and "that criminal penalties are provided to protect against the obstruction of proceedings before Federal departments and agencies. See 18 U.S.C.A. § 1505 (West 1995); see, e.g., United States v. Sullivan , 618 F.2d 1290 (8th Cir. 1980)." Slip op. at 3 n.3.

IX H 1 Rule 11; sanctions for "abuse of process"

In Macktal v. Brown & Root, Inc., 86-ERA-23 (Sec'y Oct. 13, 1993), Complainant sought sanctions and a default judgment asserting that Respondent and its counsel engaged in a conspiracy to conceal information from the NRC and violated Rule 11 of the Federal Rules of Civil Procedure. In Macktal , the central issue was a provision found to be violative of public policy because it restricted Complainant's right to provide information to government agencies.

Complainant asserted that Rule 11 was violated because Respondent falsely asserted that the settlement was not an agreement to suppress or withhold testimony. The Secretary noted that it this appeared to be a dispute over how to characterize the settlement rather than a deliberate misstatement of objective facts, but more fundamentally stated that he has held that he has no power under Rule 11 to impose sanctions against a party or its counsel. See Cable v. Arizona Public Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992).

Complainant also asserted that Respondent engaged in an "abuse of process" by utilizing the settlement to conceal information from the NRC. The Secretary noted that this appeared to be an assertion of the common law tort or abuse of process and that the Secretary had not authority under the ERA to consider a tort action. In addition, the Secretary noted that such a provision had not been declared improper by either the NRC or the Secretary at the time the settlement was entered into.

[Nuclear & Environmental Whistleblower Digest IX H]
PRO SE LITIGANT; FAILURE TO OBSERVE CIVILITY AND RESPECT DURING LITIGATION

In Hasan v. Sargent & Lundy , ARB No. 03 078, ALJ No. 2002 ERA 32 (ARB Mar. 28, 2003), Respondent filed a request that the ARB strike a motion filed by Complainant on the ground that it was one of a series of pleadings in which Complainant defamed opposing counsel, the various judges that have been assigned his cases, the federal agencies with responsibility for ERA matters and the U.S. Congress. Finding that the pleading was replete with offensive personal attacks on the integrity and competency of DOL ALJs and others, and that it had previously admonished Complainant, the ARB held the Respondent's motion to strike in abeyance, and directed that if Complainant persisted in filing pleadings in that case or any other case before the ARB that contain such vitriolic personal attacks, the ARB would strike the pleading, and, if appropriate, dismiss the complaint.

IX H 1 Imposition of sanctions under Rule 37

In Wagerle v. The Hospital of the University of Pennsylvania, the Dep't of Physiology and Pediatrics, 93- ERA-1 (ALJ Nov. 20, 1992) (order granting motion for sanctions), the ALJ granted the respondent's motion under Rules 37(b)(2) & (d) of the Federal Rules of Civil Procedure to limit the issues in the case to the alleged retaliatory acts set forth in the complainant's letter to the Wage and Hour Division because of his failure to appear at a timely scheduled deposition. The ALJ also directed that the depositions of certain witnesses not be taken because of the failure of the deposing party to comply with the prehearing order that discovery be expedited and that counsel shall cooperate in this regard (the depositions had been scheduled at the last minute without the prior agreement of opposing counsel).

IX. H. 1. Applicability of Federal Rules of Civil Procedure; imposition of sanctions

Rule 11 of the Federal Rules of Civil Procedure is not applicable in whistleblower cases because filing a frivolous claim and pursuing it in bad faith is covered by DOL regulations on the conduct of hearings before ALJs. See 29 C.F.R. §§ 18.1(a) and 18.36(b); Rex v. Ebasco Services, Inc., 87-ERA-6 and 40 (Sec'y Mar. 4, 1994).

Saporito v. Florida Power & Light Co., 90-ERA- 27 and 47 (Sec'y Aug. 8, 1994) (ALJ had denied Respondent's request for fees, costs and sanctions on the ground that Complainant's claims were made in good faith; Secretary pointed out that this appeared to be a Rule 11 analysis).

[Editor's note: Complainant's attorney was one of the same attorneys involved in Rex .]

IX H 1 Rule 11 sanctions not applicable

In Rogers v. Multi-Amp Corp., 85-ERA-16 (Sec'y Dec. 18, 1992), the ALJ had denied the respondent's motion for attorney's fees and costs made under Rule 11 of the Federal Rules of Civil Procedure because the complainant filed the complaint in good faith and simply could not carry her burden of proof. The Secretary agreed that attorney fees and costs should be denied; however, she pointed out that she had recently ruled that Rule 11 does not apply to whistleblower cases because 29 C.F.R. § 18.36 provides a remedy for conduct which is dilatory, unethical, unreasonable and in bad faith. See Cable v. Arizona Public Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992), slip op. at 5- 6. She also pointed out that the ERA provides for recovery of attorney's fees by complainants but not by respondents. See 42 U.S.C. § 5851(b)(2)(B).

IX H 1 Rule 11 sanctions

In Nunn v. Duke Power Co., 84-ERA-7 (Sec'y July 30, 1987) (remand), the Secretary denied Complainant's motion for imposition of sanctions against Respondent and its counsel, but "without prejudice to renewal of the motions before the ALJ and for a ruling by him in accordance with Rule 11 of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 11."

IX H 1 Rule 11 sanctions

In a removal action, the federal district court was found not to have abused its discretion in imposing a Rule 11 sanction based, at least in part, on the complainant's filing of mountainous piles of unorganized documents and making misleading citations of law; however the amount of the award ($22,625) was not adequately explained. The court indicated that a joint and several award under Rule 11 may be appropriate where the client is an attorney. Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir. 1988).

IX H 1 Sanctions; Rule 11 not applicable

In Cable v. Arizona Public Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992), slip op. at 5-6, the Secretary held that section 18.36 of the Rules of Practice and Procedure for Proceedings Before the Office of Administrative Law Judges provides a remedy for conduct which is dilatory, unethical, unreasonable, and in bad faith: suspension of the attorney from participation in the particular proceeding. Because section 18.36 "provides for or controls," see 29 C.F.R. § 18.1(a), inappropriate conduct, Rule 11 of the Federal Rules of Civle Procedure does not apply. See Stack v. Preston Trucking Co., 89-STA-15 (Sec'y Apr. 18, 1990), slip op. at 7-9.

IX H 1 Rule 11 does not apply; Respondent not entitled to attorney fees as sanction

In Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 1, 1993), Respondent requested a reasonable attorney's fee as a sanction against Complainant and his counsel for their purported bad faith conduct in this case, and to compensate Respondent for the time and effort spent in responding to such conduct.

The Secretary declined to impose such a sanction. He stated that the environmental actions under which the complaint was brought authorize the payment of an attorney's fee only to a successful complainant. See 15 U.S.C. 2622(b)(2)(B) (TSCA), 42 U.S.C. 7622(b)(2)(B) (CAA); 42 U.S.C. 9610(c) (CERCLA). Since there is no provision for recovery of costs and attorney's fees by a respondent, he denied the request. See Rogers v. Multi-Amp Corp., 85-ERA-16 (Sec'y Dec. 18, 1992) (under analogous provision of ERA).

The Secretary noted that Fed. R. Civ. P. 11 does not apply in the case as a basis to impose a sanction. See Rogers, slip op. at 2-3; Cable v. Arizona Public Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992), slip op. at 5-6 (Rule 11 does not provide a basis for sanction against a party accused of acting in bad faith in case under analogous employee protection provision of ERA).

IX H 1 Rule 11 sanctions

In Willy v. Coastal Corp., 112 S. Ct. 1076 (1992), reh'g denied, 112 S. Ct. 2001 (1992), the District Court imposed Rule 11 sanctions on the petitioner and his attorney. Later, it was determined by a Court of Appeals that the District Court did not have subject matter jurisdiction over the matter. The Supreme Court held that the Rule 11 sanctions would stand.

Willy involved the respondent's attempt to remove Texas claims relating to Willy's termination as in-house counsel for the respondent.

The District Court imposed the sanctions because "the filings made by plaintiff's counsel 'create[d] a blur of absolute confusion.' . . . These included a 1,200-page, unindexed, unnumbered pile of materials that the District Court determined 'to be a conscious and wanton affront to the judicial process, this Court, and opposing counsel' that was 'irresponsible at a minimum and at worst intentionally harassing.' . . . Petitioner's sanctionable behavior also included careless pleading, such as reliance on a nonexistent Federal Rule of Evidence."

The sanction was imposed jointly and severally against Willy and his attorney -- $22,625 in attorney's fees.

The Supreme Court noted that it had recently examined Rule 11's scope and purpose in great detail in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S. Ct. 2447, 110 L.Ed. 2d 359 (1990).

[Editor's note: This case was included in the Digest even though it is not a DOL employee protection case, but a state law based wrongful termination case based on the same circumstances at issue in a parallel DOL case. It is interesting to note that in the DOL case, the ALJ recommended that the Complainant be denied relief because he had intentionally misrepresented some facts. See Willy v. The Coastal Corp., 85-CAA-1 (ALJ Nov. 29, 1988).

The Secretary has ruled that Part 18 does not give an ALJ the authority to impose Rule 11 sanctions. See Cable v. Arizona Public Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992).]

IX H 2 Disqualification of attorneys

The Secretary of Labor implied that Billie Pirner Garde, Esquire, and Robert Guild, Esquire, may have been guilty of unprofessional conduct in the employee protection case of Rex v. Ebasco Service, Inc., 87-ERA-6 and 40 (Sec'y Mar. 4, 1994). The Secretary's order, however, did not include an affirmative finding on whether Ms. Garde or Mr. Guild had acted unprofessionally.

In Rex , the ALJ had found Complainant's attorneys to have engaged in a "vexatious pursuit of a groundless action."[1] __________

[Footnote 1]

The ALJ found that it was "patently obvious from the documents which were available to Complainant and his counsel both prior to and immediately following the filing of the Complaint, that there was no reasonable factual basis to support the claims," and that "but for the conduct of Complainant and his attorneys, [Respondent] would not have incurred attorney's fees and expenses in the amount of $77,468.53." Rex v. Ebasco Services, Inc., 87-ERA-6 and 40 (ALJ May 12, 1989).

The Secretary indicated that if Ms. Garde or Mr. Guild enters "an appearance in any case before a Department of Labor ALJ after [March 4, 1994], the ALJ, after notice and opportunity for hearing, may take the action authorized in [29 C.F.R. § 18.34(g)(3)]." Slip op. at 7 (footnote omitted).

[Editor's notes: In pertinent part, section 18.34(g)(3) provides:

(3) Denial of authority to appear. The administrative law judge may deny the privilege of appearing to any person, within applicable statutory constraints, e.g. 5 U.S.C. 555, who he or she finds after notice and opportunity for hearing in the matter does not possess the requisite qualifications to represent others; or is lacking in character or integrity; has engaged in unethical or improper professional conduct; or has engaged in an act involving moral turpitude.

The Secretary's order did not address what is to be done in proceedings in which Ms. Garde has already entered an appearance.]

IX H 3 Sanctions; ex parte communication

In Hobby v. Georgia Power Co., 90-ERA-30 (ALJ July 27, 1990) (predecision order), the ALJ denied the complainant's motions for sanctions under 5 U.S.C. § 557(d)(1) (sanctions imposed under the A.P.A. against a party engaging in a prohibited ex parte communication) and for additional time to conduct discovery into ex parte communications and for a show cause hearing. The ALJ found that no ex parte communications had transpired, and that it was inappropriate to stay the proceedings pending a search for same. See State of North Carolina, Environmental Policy Institute v. Environmental Protection Agency, 881 F.2d 1250 (4th Cir. 1989) (declining to stay a proceeding pending disclosure of alleged ex parte communications in light of the ALJ's having indicated that he would consider and take appropriate action regarding any such communications disclosed pursuant to his order prior to reaching a decision on the merits of the case).

[Nuclear and Environmental Digest IX H 4]
STRING OF VEXATIOUS, HARASSING AND DUPLICATIVE COMPLAINTS; ARB'S AUTHORITY TO IMPOSE CONDITIONS AND RESTRICTIONS ON FUTURE APPELLATE REVIEW

In Saporito v. Florida Power and Light Co. , ARB Nos. 09-072, -128, -129, -141 ALJ Nos. 2009-ERA-1, 6, 9, 12, (ARB Apr. 29, 2011), the Complainant had filed a series of ERA whistleblower complaints alleging that the Respondent's attorney's publically available comments before the NRC, or responses filed before the Florida Public Service Commission blacklisted him or his company from obtaining employment with other employers. In each case, the ALJ had granted summary decision in favor of the Respondents. On appeal the ARB noted that it was public knowledge that the Complainant had been discharged for cause by the Respondent and was not eligible for rehire. The ARB found that the Complainant had not alleged that the comments or the response adversely affected his compensation, terms, conditions, and privileges of employment or that any potential employers declined to hire him due to the comments or response at the time of his complaints. The ARB found that the Complainant's complaints had been without merit and were frivolous.

The ARB also found that "the record justifies the imposition of filing restrictions related to FPL due to Saporito's string of vexatious, harassing, and duplicative complaints against FPL, without a good faith expectation of prevailing, and subsequent appeals to the Board that are wholly without merit, causing unnecessary expense to FPL and placing a needless burden on the dockets of the OALJ and the Board." The Board noted that the right of access to the courts is neither absolute nor unconditional, and that conditions and restrictions may be imposed where necessary to preserve judicial resources for other persons. Consequently, the ARB put the Complainant on notice that it would not address the merits of any future petition for review from him against the Respondent or the Respondent's employees, unless he was represented by counsel, and included in his petition for review (1) a list of all complaints and appeals currently pending or filed previously with the OALJ and the ARB and the current status or disposition of those cases; (2) a list of any outstanding injunctions or orders limiting his access to the OALJ for any reason; and (3) a sworn affirmation by the Complainant that sufficiently explains how such petition and the underlying complaint are not essentially the relitigation of previous claims brought against the Respondent.

[Nuclear and Environmental Digest IX H 4]
SANCTIONS AGAINST A COMPLAINANT FOR CONTINUED RE-LITIGATION OF A COMPLAINT

In Saporito v. Florida Power & Light Co. , ARB Nos. 09-009, 09-010, ALJ No. 2008-ERA-14 (ARB Feb. 28, 2011), the ARB affirmed the ALJ's denial of the Respondent's motion for sanctions against the Complainant for his continued re-litigation of his termination from employment in 1988. The ARB, however, emphasized that ALJs have the authority to control the cases before them. The ARB also noted that the Complainant has several other appeals pending before it involving the same parties, and stated that it might revisit the issue of sanctions if it is appropriately before it in the remaining appeals.

[Nuclear and Environment Digest IX H 4]
FRIVOLOUS LITIGATION; COURT OF APPEALS AUTHORITY TO IMPOSE SANCTIONS UNDER FED. R. APP. P. 38

In Hasan v. USDOL , No. 05-099 (7th Cir. Dec. 10, 2008) (unpublished) (case below ARB No. 05-099, ALJ No. 2002-ERA-32), the Seventh Circuit found that the Petitioner had filed at least a dozen similar whistleblower complaints that had been found lacking in merit by the ARB and courts of appeals. The court wrote: "Hasan's repeated frivolous litigation drains judicial resources, and we cannot allow it to continue. We have the discretion to impose, on our own motion, appropriate sanctions upon litigants who file frivolous petitions. FED. R. APP. P. 38; CIR. R. 38. Accordingly, we give Hasan fourteen days to show cause why he should not be subject to monetary sanctions under FED. R. APP. P. 38." Slip op. at 3 (citation omitted).

IX H 4 Allegation of attorney misconduct

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.

[Nuclear & Environmental Whistleblower Digest IX H 4]
ADVERSE INFERENCE BASED ON SPOLIATION OF EVIDENCE; DESTRUCTION OF DOCUMENTS UNDER FEDERAL RECORDS RETENTION SCHEDULE

In Pickett v. Tennessee Valley Authority , ARB No. 00 076, ALJ No. 2000 CAA 9 (ARB Apr. 23, 2003), Complainant alleged that Respondent's failure to provide documents he had requested under the FOIA and Privacy Act amounted to the spoliation of evidence, and entitled him to an inference that the evidence was unfavorable to Respondent. The ARB held that the FOIA and Privacy Act issues fell beyond the authority of ALJs in environmental whistleblower cases and that Complainant failed to show that Respondent had engaged in improper conduct in this connection. Respondent had advised that it destroyed certain documents in accordance with its records retention schedules. This destruction was four years before Complainant filed suit, and Complainant did not show that Respondent lacked a routine document destruction policy or that the documents were not destroyed and were being withheld in connection with this litigation. The ARB thus agreed with the ALJ that Complainant was not entitled to adverse inferences or sanctions under 29 C.F.R. Part 18 as a consequence of his failure to obtain information he sought under the FOIA and Privacy Acts.

[Nuclear and Environmental Digest IX I]
TIMELINESS; BINDING JUDICIAL ADMISSION

In Kanj v. Viejas Band of Kumeyaay Indians , ARB No. 09-065, ALJ No. 2006-WPC-1 (ARB Dec. 1, 2010), the Respondent argued for the first time, on the opening day of the evidentiary hearing, that the Complainant's retaliation claim was time barred. This was three years after the OSHA complaint had been filed, and two and a half years after the Respondent's initial answer to the complaint. The ALJ did not rule on the timeliness issue, but continued with the hearing, and directed the parties to brief the timeliness issue post-hearing. Ultimately, the ALJ ruled that the claim was time barred.

The Respondent had earlier moved for leave to file an amended answer asserting an affirmative defense that "some" of the claims were barred by the statute of limitations, with the Respondent's counsel attesting that "adding the defense of the statute of limitations will inject no new factual issues into the case" and that the Respondent "concedes that the filing of the Complaint with the Department of Labor was timely as to [the Complainant's] termination." The Complainant objected, but the ALJ granted the motion to amend. The amended answer only asserted as an affirmative defense that "some" of the claims were barred by the statute of limitations, and did not mention a statute of limitations defense as to the retaliation claim.

On appeal, the ARB found that the Respondent had made a judicial admission that conclusively resolved the issue of timeliness. The Respondent argued that the Complainant waived the right to argue on appeal that there was a binding judicial admission because the Complainant had staunchly objected at the hearing to the raising of the new defense, alleging estoppel, waiver and laches. Although the Complainant had not argued estoppel in his post-hearing brief, he raised it in a motion for reconsideration of the ALJ's decision, expressly referring to the declarations made by the Respondent's counsel. The ARB stated:

We believe that Kanj's objections during the evidentiary hearing and his arguments in his motion for reconsideration sufficiently preserved his right to argue on appeal that the Tribe should be barred from raising the limitations defense to the retaliation claim. See, e.g., Rose v. Dole, 945 F.2d 1331, 1334 (6th Cir. 1991) (argument may be heard on appeal even if not forcefully raised below). Most importantly, it would be a great miscarriage of justice to allow a party to raise a limitations defense at the evidentiary hearing after years of litigation and then foreclose the right of appeal because the opponent fumbled a response after being unfairly surprised.

Slip op. at 6 (footnote omitted). Returning to its finding that there had been a binding judicial admission, the ARB explained:

We view the Tribe's admissions that Kanj's claim was timely and that the Tribe terminated his employment on July 25, 2005, as binding factual representations and concessions that the Tribe made, upon which Kanj reasonably and in good faith relied. See, e.g., Christian Legal Soc. v. Martinez , 130 S. Ct. 2971, 3005 (2010) (a party's admissions in a joint stipulation of facts was binding on the parties); American Title Ins. Co. v. Lacelaw Corp. , 861 F.2d 224, 226 (9th Cir. 1988) ("[U]nder federal law, stipulations and admissions in the pleadings are generally binding on the parties and the Court. Not only are such admissions and stipulations binding before the trial court, but they are binding on appeal as well.") ( quoting Ferguson v. Neighborhood Housing Servs., 780 F.2d 549, 551 (6th Cir. 1986) (citations omitted)); Gospel Missions of America v. City of Los Angeles, 328 F.3d 548, 557 (9th Cir. 2003) (wherein the Ninth Circuit found that both it, as the appellate body, and the trial court, had discretion to consider a statement made in briefs to be a judicial admission). As a result, the Tribe is deemed bound by their admissions that Kanj's complaint was timely. Our finding is dispositive of this matter because it completely resolves the limitations issue as to Kanj's retaliation complaint. We have strong concerns about the unfair surprise that occurred as well, but we do not need to address that issue or the merits of the Tribe's limitation defense.

Slip op. at 7.

[Nuclear and Environment Digest IX I]
TIMELINESS OF PETITION FOR REVIEW BY THE COURT OF APPEALS

In Knox v. USDOL , No. 07-2116 (4th Cir. Nov. 20, 2008) (unpublished) (case below ARB No. 07-105, ALJ No. 2001-CAA-3), the Fourth Circuit dismissed the Complainant's petition for review of the ARB's decision on his CAA whistleblower complaint where the petition was filed 61 days after the ARB issued its decision. Under the CAA, a petition for review must be filed within 60 days. The court found that this time period was jurisdictional. The court also found that the time period could not be extended unless specifically authorized by law, and that the CAA contained no such authorization.

IX I Respondent's interest in expeditious time frame

[Editor's note: In Gabbrielli v. Enertech, 92-ERA- 51 (Sec'y July 13, 1993), Complainant contended that because of his personal problems and Respondent's misleading behavior, he did not realize until October 1991 that Respondent had a retaliatory motive for his "layoff." In the course of ruling that Complainant had not acted diligently in protecting his employment rights, the Secretary noted that Respondent received timely notice of the specific statutory claim that was subsequently asserted by Complainant. Thus, Respondent was denied the protection which the expeditious time frame was intended to provide. Query whether this is a ruling that could be used to support a Respondent's refusal to waive a time limitation??]

[Nuclear and Environmental Whistleblower Digest IX I]
CONTINUANCE; TIME LIMIT FOR ISSUANCE OF FINAL ADMINISTRATIVE DECISION

In Forest v. Williams Power Corp. , 2000-ERA-16 and 17 (ALJ Apr. 7, 2000), one Respondent argued that Complainant should not be granted a continuance on the ground that an ALJ does not have the discretion to waive the statutory and regulatory deadlines under the circumstances before the ALJ. See 42 U.S.C. § 5851(b)(2)(A) and 29 C.F.R. § 24.6(a). The ALJ rejected this argument based on the ARB's holding in Timmons v. Mattingly Testing Services , 1995-ERA-40 (ARB June 21, 1996), that the statutory and regulatory requirements are directory, not mandatory, and should not interfere with the full and fair presentation of a case.

The ALJ went on to explain succinctly why she found that there were compelling reasons to order a continuance:

[A] complainant who waives the statutory and regulatory deadlines should be allowed time to conduct discovery for the very practical reason that the complainant must go first, and if the complainant is not prepared there can be no full and fair presentation of the case. Although, as Complainant has noted, [the objecting Respondent] has claimed no prejudice, if it is in any way prejudiced by the delay, it will be provided with the opportunity to combat such prejudice. Further, as [the other Respondent] has suggested, there are compelling reasons to allow the parties time to prepare and file dispositive motions, in order to ensure the full and fair presentation of the case. Also, as [the other Respondent] has noted, as a practical matter the 90-day deadline has expired with respect to at least the first of the complaints (filed on November 29, 1999), and allowing for completion of the hearing and preparation of a decision within 20 days (in accordance with 29 C.F.R. § 24.7), the deadlines cannot be met with respect to the second complaint (filed on January 31, 2000) either.

[Nuclear & Environmental Digest IX I]
EXTENSION OF TIME; FAILURE TO REQUEST TIMELY

In Balog v. Med-Safe Systems, Inc. , 1995-TSC-9 (ARB Apr. 2, 1999), the ARB denied Complainant's attorney's request for an extension of time for the filing of an initial brief on review where a prior extension had been granted, and the attorney did not request the second extension until the day following the end of the originally extended briefing period. The ARB indicated that the ruling did not prejudice the attorney's opportunity to file a reply brief as permitted by the ARB's briefing orders ( i.e. , limited to issues raised in Respondent's initial brief).

Compare Schulman v. Clean Harbors Environmental Services, Inc. , 1998-STA-24 (ARB Mar. 8, 1999) (ARB reversed earlier order denying Complainant's request for a second extension of time where Complainant was able to establish that he had, in fact, filed a timely second request).

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.

IX I Waiver of time constraints; opposition by respondent

In Holub v. H. Nash Babcock, Babcock & King, Inc., 93-ERA-25 (ALJ June 24, 1993) (prehearing order), Complainant waived his right to have the proceeding conducted within the regulatory time constraints, but Respondents refused to waive those constraints. The ALJ found that, although the time constraints are on their face "party-neutral," the purpose of the employee protection provision of the ERA is protection of employees from adverse action taken in retaliation for protected activity, with a "make-whole" remedy. In other words, time constraints are designed to restore complainants with meritorious complaints to his or her former work-life as quickly as possible. There is no mirror-image need for an employer to have such quick action. The ALJ also looked to Federal Coal Mine Safety and Health Act case law for precedent -- with the conclusion that complainants should be afforded a waiver of the time constraints if he or she deems it necessary to prepare his or her case.

Respondents also asserted that they required an expedited proceedings to limit their liability for back pay and damages. The ALJ looked to 29 C.F.R. § 18.42 for the standard applied to consideration of requests for expedited proceedings. Of the section 18.42 elements, the most important for consideration in the instant proceeding was the "irreparable harm" provision. The ALJ found that financial harm does not fall within the category of "irreparable" harm. In addition, the ALJ noted that in the context of liability for interest on an award of back pay the Secretary had stated that the potential for accrual of back pay and damages based on delays in litigation is not viewed as prejudice.

IX I Purpose of expedited procedure

The expedited procedures prescribed for employee protection statutes such as that the ERA and the regulations thereunder are for the benefit of the employee who is likely to be out of a job or otherwise economically disadvantaged by the employer's alleged retaliation. They are not designed to provide the employer with a means of pressuring or harassing an employee who has "blown the whistle." Bullock v. Rochester Gas & Electric Corp., 84-ERA-22 (ALJ June 8, 1984) (interim order) (Respondent had opposed continuance for Complainant to obtain an attorney).

IX K Stay of proceedings

In Wensil v. United States Dept. of Energy, 88-ERA- 34 (Sec'y Sept. 29, 1989), the Secretary stayed a case in which an issue involving jurisdiction was resolved in other cases pending before her (the consolidated case of 86-ERA-15 and 87- ERA-12).

[Nuclear & Environmental Digest IX K]
STAY; DE NOVO REVIEW OF NON-DEMEANOR CREDIBILITY DETERMINATIONS; IMPACT OF COMPLAINANT HAVING BEEN A HIGH MANAGEMENT OFFICIAL

In Hobby v. Georgia Power Co. , ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Apr. 20, 2001), Respondent requested that the ARB stay its final decision. The ARB utilized a four-part test to determine whether to grant a stay:

(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal;

The ARB found that it was not likely that Respondent would prevail on appeal; although Respondent alleged that the Secretary of Labor in a 1995 decision on liability improperly reversed the ALJ on critical credibility determinations, the ARB found that the Secretary's decision had not been based on demeanor-based credibility findings by the ALJ, but rather on different inferences raised from the evidence which is proper based on the Secretary's de novo review authority.

(2) the likelihood that the moving party will be irreparably harmed absent a stay;

The ARB found unpersuasive Respondent's argument that it would suffer irreparable harm if Complainant was reinstated into its management ranks, based on arguments about Complainant's competence and access to confidential and proprietary information. The ARB, noting that Congress plainly contemplated that reinstatement would be effected immediately upon the Secretary's (or ARB's) issuance of a Final Order, found that inconvenience to Respondent was insufficient reason to support a stay, and that a company as large as Respondent should be able to reintegrate Complainant without compromising sensitive matters. The ARB noted that Respondent routinely uses classroom training for managers, and suggested that Complainant's retraining begin immediately.

(3) the prospect that others will be harmed if the court grants the stay; and

The ARB found that delay in reinstatement could further stigmatize a complainant, and could mean further delay in an award of back pay and other damages.

(4) the public interest in granting a stay.

The ARB declined to adopt Respondent's theory that senior managers have a different relationship with the employer than lower level personnel, and thus restoration to prior status may not be appropriate. The ARB held that "there is no reason why senior managers should receive less protection under the ERA than workers who occupy lower rungs on the corporate ladder." Slip at 7, citing ARB 2001 Dec. at 10.

[Nuclear and Environmental Digest IX.K.]
ABEYANCE OF ARB REVIEW

In Charvat v. Eastern Ohio Regional Wastewater Authority , ARB Nos. 98-147 and 98-148, ALJ No. 1996-ERA-37 (ARB Nov. 15, 2000), Respondent requested that the ARB hold its review of the DOL whistleblower matter in abeyance pending resolution of parallel action the Sixth Circuit. The ARB denied the motion, finding that there was no evidence that Complainant's right to freedom of expression under § 1983 suit in federal court was relevant to Complainant's CAA and SDWA whistleblower complaints now pending before the ARB. The ARB also noted that the administrative proceeding was far advanced, a hearing having been conducted, the ALJ having issued a recommended decision, and the parties' objections thereto being fully briefed.

[Nuclear and Environmental Digest IX.K.]
MOTION TO EXPEDITE; PENDING STATE COURT ACTION PRESENTING IDENTICAL ISSUE

In Doody v. Centerior Energy , ARB No. 00-051, ALJ No. 1997-ERA-43 (ARB Dec. 4, 2000), Respondent filed to motion to expedite the ARB's review based on an imminent trial date in a state civil action on Complainant's claim of wrongful discharge in retaliation for reporting safety concerns to the NRC. Respondent asserted that the issue before the state court is identical to the issue pending before the ARB, and that the ARB's order would be res judicata in the state court action. Respondent argued that expediting review would promote policies such as judicial economy and a uniform result in both proceeding.

The ARB was appreciative of Respondent's position, but was disinclined to expedite the appeal because it would be detrimental to other parties whose cases have been pending longer at the ARB. The ARB suggested that Respondent move for a stay in the state court action.

[Nuclear & Environmental Digest IX K]
STANDARD FOR DETERMINING WHETHER TO STAY ALJ PROCEEDING BASED ON PARALLEL STATE COURT PROCEEDING

In Hodgin v. Fluor Daniel Northwest, Inc. , 1998-ERA-45 to 48 (ALJ Aug. 20, 1999), Complainants requested that the proceedings before the Department of Labor ALJ be stayed until the conclusion of a recently filed parallel state court proceeding. Applying the standards set out in Colorado River Water Conservation District v. United States , 424 U.S. 800 (1976) and Moses H. Cone Memorial Hospital v. Mercury Construction Corp. , 460 U.S. 1 (1982), the ALJ denied the request for a stay. The ALJ weighed the relevant factors, and noted circumstances such as differences in the burden of proof between the state action and the federal anti-retaliation action, and the fact that the state court action was filed almost 16 months after the beginning of the federal administrative proceeding. The ALJ found unconvincing Complainants' argument that the state action would likely be resolved substantially sooner than the federal administrative proceeding the ALJ noting that under current regulations at least some of the remedies recommended in an ALJ's initial decision become effective immediately (29 C.F.R. § 24.7(c)(2)). The ALJ also found unconvincing Complainant's argument that ALJs lack sufficient authority to impose sanctions for violations of procedural orders, or that it was relevant that third-party subpoenas are not available in an ERA whistleblower proceeding. Finally, the ALJ observed that there appeared to be no reason not to recognize the fact that discovery in the state court proceeding could reveal information from third-parties that would be relevant in the federal administrative proceedings. Accordingly, the ALJ, although declining to grant an indefinite stay, did postpone the commencement of the trial for six months.

[Nuclear and Environmental Whistleblower Digest IX K]
STAY PENDING APPEAL IN FEDERAL COURTS

The standard for determining whether an ARB final decision should be stayed pending judicial review is set out in Doyle v. Hydro Nuclear Services , ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB ay 17, 2000):

(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal;
(2) the likelihood that the moving party will be irreparably harmed absent a stay;
(3) the prospect that others will be harmed if the court grants the stay; and
(4) the public interest in granting a stay.

Id. @ 8, citing Dutkiewicz v. Clean Harbors Environmental Svcs, Inc. , ARB No. 97-090, ALJ No. 1995-STA-34 (ARB Sept. 23, 1997); Goldstein v. Ebasco Constructors, Inc ., 1986-ERA-35 (Sec'y Aug. 31, 1992). In regard to these elements, (1) the ARB was not convinced that the errors cited by Respondent would be likely to permit it to prevail on the merits of the appeal; (2) even though Respondent alleged that it would have to pay about $600,000 to Complainant which it may not be able to recover if it succeeds on appeal, the ARB found that it was unlikely that Respondent would prevail on appeal and that it had not shown that the purported economic loss would threaten the company's very existence; (3) there were compelling reasons to find that further delay in paying Complainant the damages owed would further damage him; and (4) the public interest is that Complainant be made whole for his injuries.

STAY OF EFFECTIVE DATE OF ORDER; STANDARD
[N/E Digest IX K]

In Harrison v. Stone & Webster Engineering Group , 93-ERA-44 (Sec'y Dec. 13, 1995), the Respondent applied for a stay of the Secretary's decision in favor of the Complainant pending review by the Court of Appeals. The Secretary noted that an agency may postpone the effective date of its orders pending judicial review where required by justice. Four factors are considered:

the likelihood that the movant will prevail on the merits of the appeal;
the likelihood that the movant will suffer irreparable harm absent a stay;
the prospect that others will be harmed if the agency order is stayed; and
the public interest in granting a stay.

Each factor must be addressed by the movant as it pertains to the circumstances of the case regardless of how compelling the factor may be in support of a stay. The movant must provide facts and affidavits supporting its assertions so that the record contains evidence upon which to base specific findings. In the instant case, the Respondent failed to demonstrate the need for a stay.STAY ON REMAND PENDING JUDICIAL REVIEW
[N/E Digest IX K]

In Hoffman v. W. Max Bossert, 94-CAA-4 (Sec'y Nov. 20, 1995), the Secretary denied the Respondent's request for an administrative stay on a remand order pending judicial review in the United States Court of Appeals. The Secretary found that the Respondent had failed to allege or show that he is likely to prevail on appeal, that he will suffer irreparable injury if not granted a stay, or that the public interest is at stake. See Virginia Petroleum Jobbers Assn v. Federal Power Comm'n, 259 F.2d 921, 925 (D.C. Cir. 1958); Commonwealth- Lord Joint Venture v. Donovan, 724 F.2d 67, 68 (7th Cir. 1983).

IX K Stay of ALJ proceedings; Fifth Amendment right against self-incrimination

The ALJ in Griffith v. Lassen Municipal Utility District, 92-TSC-3 (ALJ July 28, 1992), held that all discovery in the complainant's whistleblower action under the Toxic Substances Control Act, 15 U.S.C. § 2622 would be stayed until such time as any possible criminal charges against the complainant are resolved or the complainant decides that he no longer wishes to invoke his right against self-incrimination in connection with the TSC proceeding. In Griffith, the complainant was charged with criminal trespass on the respondent's land and taking oil from transformers owned by the respondent. Based on Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir. 1979), the ALJ found that evidence the complainant may be asked to provide in discovery could be used to prosecute the complainant for a crime. Therefore, it was necessary to stay indefinitely the TSC action until the potential criminal prosecution is resolved. The complainant was deemed to have waived his right to an expedited hearing under the circumstances.

IX L Motion in limine

[N/E Digest IX L]
MOTION IN LIMINE; ATTORNEY-CLIENT PRIVILEGE; WAIVER BY DISCLOSURE; IMPLIED WAIVER WHERE INFORMATION CONSTITUTES DEFENSE

In Paine v. Saybolt, Inc. , 97-CAA-4 (ALJ Mar. 21, 1997)(prehearing order), Respondent submitted a motion in limine seeking to exclude from evidence at the hearing of the matter Complainant's affidavit in support of his charge filed with the Wage and Hour Division of the USDOL, based on the contention that the affidavit -- which included descriptions of alleged conversations between Complainant (a former district manager for Respondent) and Respondent's general counsel -- is protected on the basis of attorney-client privilege. The ALJ denied the motion in an order that contains a good discussion of the law of attorney-client privilege, who may assert the privilege, and when it may be waived.

The ALJ found that Respondent's attorney's statements in a letter to Wage and Hour (apparently in response to the complaint) destroyed the element of confidentiality necessary to the attorney-client privilege, and that Respondent's attorney, as vice-president and general counsel, was a person vested with authority to represent the position of the Respondent corporation. Alternatively, the ALJ held that even if Respondent's attorney did not have this authority, the privilege was waived when the information was revealed to another and Respondent corporation did not object. In addition, the ALJ found that there was an implicit waiver of the privilege because the questioned communications were inextricably merged with Respondent's affirmative defense (the communications were relevant to motive and to Respondent's claimed lack of knowledge of Complainant's protected activity). The ALJ concluded that "[t]he benefit to be gained from disclosure certainly outweighs any claim to the attorney-client privilege."

Having determined that the privilege had been waived, the ALJ found that he must determine the scope of the waiver, balancing the interests of the importance of the privilege against the non-asserting party's need for the information. The ALJ noted that retaliatory intent cases that are based on circumstantial evidence require full presentation of a broad range of evidence, and the ALJs may not exclude relevant evidence unless it is "unduly repetitious." Moreover, the ALJ noted that Respondent had used the letter to Wage and Hour "as a sword to pierce holes in Complainant's claim. Respondent, having been the first to yield the sword may not now relinquish the weapon with which it chose to defend itself." Slip op. at 8. Finally, the ALJ found that certain of the conversations alleged to be covered by attorney-client privilege may fall within the crime-fraud exception ( e.g. , Complainant alleged that Respondent's attorney instructed Complainant to fire an employee immediately because he was an EPA spy, and that the attorney instructed Complainant as to the pretextual reason for the firing).

[Nuclear & Environmental Digest IX L]
MOTION IN LIMINE

In Shelton v. Oak Ridge National Laboratory ,1995-CAA-19 (ARB Aug. 26, 1998), the ARB denied Complainant's motion in limine seeking an order declaring that certain recent Supreme Court decisions are applicable to this case as well as other whistleblower cases. The ARB noted that Complainant could cite and discuss any applicable authority in her brief on the merits.

To the same effect: High v. Lockheed Martin Energy Systems, Inc. , 1996-CAA-8 @ 2 (ARB Sept. 1, 1998)("It would not be appropriate for the Board to issue the advisory opinion that Complainant requests divorced from the facts of a specific case.")

IX. M. Other procedural matters

In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), Respondent fired Complainant as one of its in-house attorneys for failing to report a telephone call to a state agency and lying about it when asked by his supervisor; the ALJ found after a hearing that Respondent fired Complainant both because of his lie about the phone call and because of Complainant's internal memorandum on Respondent's violations of the environmental laws.

Respondent excepted on the basis of attorney-client privilege to placing the ALJ's Recommended Decision and Order and the Secretary's final decision on the public record. The Secretary noted that FOIA requires Federal agencies to disclose requested records unless the records are exempt from disclosure, and that there was no authority in the statutes involved in this case for an ALJ or the Secretary to seal either the record or their decisions, or providing an exception to the FOIA to restrict public access to any documents filed in this case.

The Secretary noted that DOL has promulgated regulations providing specific procedures for submitters of information to protect their rights under the exemptions in the FOIA. See 29 C.F.R. § 70.26.

[Nuclear and Environmental Whistleblower Digest IX M]
DISMISSAL BEFORE THE BOARD; COMPLAINANT'S REQUEST THAT THE CASE BE DISMISSED WITHOUT PREJUDICE RATHER THAN DECIDED ON THE ISSUE ON WHICH THE ALJ RECOMMENDED DISMISSAL

In Reid v. Niagara Mohawk Power Corp. , ARB No. 03-154, ALJ No. 2003-ERA-17 (ARB Oct. 19, 2004), the Complainant requested that the ARB dismiss his appeal without prejudice because his family had incurred great expense in litigating the case. The Board noted that neither the ERA nor the implementing regulations provide for dismissal without prejudice of a complaint pending before the Board, and that even if such a dismissal might be appropriate in some cases, under the facts of this case dismissal without prejudice would not be proper. The Board rejected the financial burden argument because all that remained before the Board is to issue a decision, because the Respondent had also expended resources in litigating this case and it would not be fair to deny it a final resolution or to expose it to additional legal costs should the Complainant attempt to reopen the litigation. The Board, therefore proceeded to consider the substantive issue in the case -- whether the Complainant's request for an ALJ hearing was timely.

[Nuclear & Environmental Whistleblower Digest IX M]
MOTION FOR SUMMARY REVERSAL

In Gass v. Lockheed Martin Energy Systems , ARB No. 03 093, ALJ No. 2000 CAA 22 (ARB May 9, 2003), the ARB granted Complainant's petition for leave to file a motion for summary reversal. The ARB wrote:

However, Complainant is reminded that a party seeking summary disposition has a heavy burden of establishing that the merits of his or her case are so self evident that further briefing and argument of the issues presented would not benefit the adjudicator and that the merits of the case are so patent that expedited action is warranted. Taxpayers Watchdog, Inc. v. Stanley , 819 F.2d 294, 297 98 (D.C. Cir. 1987). Accordingly, the briefing schedule shall not be held in abeyance pending the filing of any such motion.

(emphasis as in original). To the same effect: Erickson v. U.S. Environmental Protection Agency, Region 4 , ARB No. 03 064, ALJ Nos. 1999 CAA 2, 2001 CAA 8 and 13, 2002 CAA 3 and 18 (ARB Mar. 13, 2003).

[Nuclear & Environmental Whistleblower Digest IX M]
ALJ IMMUNITY

In Slavin v. Office of Administrative Law Judges , 2003 CAA 12 (ALJ Mar. 10, 2003), Complainant alleged that the Chief ALJ violated a number of environmental whistleblower protection laws when he issued a ruling on a motion to recuse, which Complainant alleged was an abusive, extralegal judicial order. The complaint was summarily dismissed on the ground, inter alia , that ALJs have absolute judicial immunity unless they are acting in the clear absence of all jurisdiction.

[Nuclear and Environmental Whistleblower Digest IX M]
ATTORNEY SUSPENSION BEFORE OALJ AND ARB; RECIPROCAL EFFECT GIVEN TO STATE SUSPENSION

In In re Slavin , ARB No. 04-172 (ARB Oct. 20, 2004), the ARB issued a Final Order Suspending Attorney From Practice Before the Administrative Review Board giving thereby reciprocal effect to a suspension order issued by the Tennessee Supreme Court on August 27, 2004. Board of Professional Responsibility of Supreme Court of Tennessee v. Slavin , 145 S.W.3d 538 (Tenn. Aug 27, 2004) (No. M2003-00845-SC-R3-BP). Both the Tennessee Supreme Court and the U.S. Supreme Court denied stays of the Tennessee suspension order. See Slavin v. Bd. of Professional Responsibility of the S. Ct. of Tennessee , No. 04A260 (U.S. Oct. 4, 2004). In In re Slavin , 2004-MIS-5 (ALJ Sept. 28, 2004), the Chief ALJ similarly suspended the attorney from practice before the Office of Administrative Law Judges based on reciprocal application of the Tennessee Supreme Court order suspending Slavin. Similar to the procedure before the ARB, the Chief ALJ had issued a Order to Show Cause, and found that "Mr. Slavin's response to the Order to Show Cause does not establish that the Tennessee proceedings were in violation of due process, were lacking in proof of misconduct, or that a grave injustice would result in giving effect to the Tennessee Supreme Court's judgment. See Selling v. Radford , 243 U.S. 46, 50-51 (1917)."

[Nuclear & Environmental Digest IX M]
PROCEDURAL ISSUE NOT ADDRESSED BY PART 24; REFERRAL TO PART 18 AND FRCP

In Melendez v. Exxon Chemicals Americas , ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000), the ARB observed that "[t]he Secretary and this Board have consistently looked to the regulations provided at 29 C.F.R. Part 18, along with the Federal Rules of Civil Procedure, for guidance in resolving procedural questions that arise in the processing of whistleblower complaints and which are not specifically addressed by the regulations at 29 C.F.R. Part 24." Slip op. at 8 n.10 (citation omitted).

[Nuclear and Environmental Whistleblower Digest IX M]
ATTORNEY'S FEES; RIGHT OF FORMER COUNSEL TO PETITION FOR ARB REVIEW

In Gaballa v. Carolina Power & Light Co. , ARB No. 99-090, ALJ Nos. 1996-ERA-43, 1998-ERA-24 (ARB May 23, 2000), the ARB granted Complainant's motion to strike Complainant's former counsel's petition for review, who sought review of the ALJ's approval of a settlement agreement between Complainant and Respondent on the ground that the settlement was allegedly invalid as it failed to address the former counsel's lien for attorney's fees.

The ARB struck Complainant's former counsel's petition for review because the Part 24 regulations provide only for ARB review of petitions by parties, and (1) he had not petitioned the ALJ for party status, and therefore the ALJ did not make the determination necessary to grant him that status; (2) assuming arguendo that his motion to intervene could be construed as a petition for party status, it was untimely; and (3) the dispute regarding his fees was essentially contractual in nature, and beyond our the ARB's adjudicatory authority under the ERA.

[N/E Digest IX M]
WITHDRAWAL OF COUNSEL

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

[N/E Digest IX M]
WAIVER OF ISSUE; OMISSION FROM BRIEF IS NOT WAIVER IF ISSUE RAISED AT HEARING

In Immanuel v. Wyoming Concrete Industries, Inc. , 95-WPC-3 (ARB ay 28, 1997), although Complainant only referred to an alterative instance of protected activity at the hearing, his omission of this instance from the post-hearing brief to the ALJ did not amount to a waiver of the argument.

PRO SE COMPLAINANT; LATITUDE DOES NOT EXTEND TO FRIVOLOUS CLAIMS
[N/E Digest IX M]

Although a pro se complainant is entitled to a certain degree of adjudicative latitude, such latitude does not extend to frivolous claims. Saporito v. Florida Power & Light Co. , 94-ERA-35 (ARB July 19, 1996).

SUBSTITUTION OF REPRESENTATIVE DURING COURSE OF PROCEEDING
[N/E Digest IX M]

In Billings v. Tennessee Valley Authority , 91-ERA-12 (ARB June 26, 1996), Complainant's wife filed a motion to be substituted as the representative of her deceased husband. The Board granted this motion pursuant to Fed. R. Civ. P. 25(a) and 29 C.F.R. § 18.1(a).

IX M Attorney misconduct; settlement of proceeding

In Rex v. Ebasco Services, Inc., 87-ERA-6 and 40 (ALJ May 22, 1995), the ALJ recommended approval of a settlement between the Solicitor of Labor and two attorneys charged with misconduct, in which the Solicitor determined that there was insufficient evidence of unprofessional conduct by two attorneys for the Complainant to warrant imposition of sanctions. The ALJ who originally presided over the matter had concluded that the attorneys had failed to conduct a reasonable inquiry into the factual and legal basis of the complaints, had conducted massive discovery for purposes of harassment, failed to make the Complainant available for deposition, and failed to notify the ALJ and counsel for Respondent immediately upon determining that they did not intend to proceed with the case but waited until the day of the trial to advise that they had no case. The agreement stipulated, however, that Complainant did not receive the document that convinced him that he had no case until two days before the hearing, that the ALJ had granted Complainant's motions to compel discovery and denied Respondent's motion to quash, that the resistance to the Complainant's deposition was based on a plausible legal theory, that the failure to immediately advise the ALJ and opposing counsel was at most poor judgment but not unethical. The Government Accountability Project, which employed the attorneys at the time, agreed to reimburse the government for the ALJ's travel expenses to the hearing location.

IX M Failure to include Employer as party

In Kent v. Barton Protective Services , 84-WPC-1 (Sec'y Apr. 6, 1987) the Complainant was dismissed from his employment following his filing of an "oil spill" report with the EPA. Complainant's first complaint was dismissed by the Wage and Hour Division for failure to file within 30 days of the alleged violation. He filed a second complaint urging reconsideration based upon equitable tolling arguments. According to Complainant, he had met with Barton and was told that his termination was not final and that he might be placed in another position. Following the hearing, Complainant wrote a letter to the ALJ stating that within thirty days of Barton's notice of dismissal, he had contacted the EEOC about his possible discrimination by Barton. In the first hearing before the ALJ, the ALJ did not provide for Barton's participation as party respondent and did not list Barton on the sevice sheet for the Notice of Hearing. The ALJ rejected the Complainant's complaint because it was not timely filed.

The Secretary held that the ALJ's failure to include Barton as a party so procedurally flawed the hearing as to preclude any decision as to the timeliness of the complaint. Citing Mullane v. Central Hanover Bank & Trust Co. , 339 U.S. 306 (1950), the Secretary held that since Barton was given no opportunity to participate in a hearng which directly affected its interests, due process considerations precluded any decision on the basis of the proceeding before the ALJ.

IX m Appropriate caption; complaint relating to radioactive materials

In Lastre v. Veterans Administration Lakeside Medical Center, 87-ERA-42 (Sec'y Mar. 31, 1988), the Secretary indicated that where a complainant's complaint relates to radioactive materials, the complaint arises under the ERA rather than the Toxic Substances Control Act, 15 U.S.C. § 2622.

IX M Correction of transcript after issuance of recommended decision

In Cotter v. Consolidated Edison Co. of New York, Inc., 81-ERA-6 (Sec'y Nov. 5, 1981), aff'd on other grounds, Consolidated Edison Co. of New York, Inc. v. Donovan, 673 F.2d 61 (2d Cir. 1982), the Secretary granted a motion to correct the transcript that had been received by the OALJ on the day following the issuance of the ALJ's recommended decision.

IX M Sovereign immunity

In Pogue v. United States Dept. of the Navy, 87- ERA-21 (Sec'y May 10, 1990), rev'd on other grounds , Pogue v. United States Dept. of Labor, 940 F.2d 1287 (9th Cir. 1987), Complainant argued that Respondent waived the defense of sovereign immunity because it was not raised before the ALJ. See Rule 12(b) of the Federal Rules of Civil Procedure. The Secretary held that sovereign immunity is a jurisdictional defense that may be raised at any time.

IX. M. Other procedural matters

IX M Applicability of Rules of Practice and Federal Rules, generally

The Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18 are applicable in any adjudicatory proceedings brought in the United States Department of Labor before an administrative law judge insofar as the procedures are not inconsistent with rules of special application such as 29 C.F.R. Part 24. See 29 C.F.R. § 18.1(a). Accordingly, where Part 24 is silent, the applicable regulation may be found in Part 18 or in the Rules of Civil Procedure for the District Courts, since those rules are applicable "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).

Nolder v. Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985).

[Nuclear & Environmental Digest IX M 1]
CONFLICT BETWEEN PSIA REGULATIONS AND ENVIRONMENTAL STATUTE REGULATIONS ON APPLICATION OF FORMAL RULES OF EVIDENCE; WHERE COMPLAINT ALLEGED VIOLATIONS OF BOTH PSIA AND ENVIRONMENTAL STATUTES FOR THE SAME CONDUCT; ALJ DETERMINED THAT IT WOULD BE NECESSARY TO APPLY A SINGLE EVIDENTIARY STANDARD AND THAT THE LESS FORMAL STANDARD OF THE PSIA REGULATIONS SHOULD APPLY

In Pedersen v. ASRC Energy Services, Inc. , 2013-CER-1 (ALJ May 6, 2014), the Complainant filed a complaint with OSHA under the whistleblower provisions of the Pipeline Safety Improvement Act (PSIA) and five environmental statutes (SWDA, SWDA, FWPCA, TSCA, and CERCLA). In an earlier order concerning a motion for summary decision, the ALJ ordered that the less formal rules of evidence applied in PSI cases would apply at the hearing. Later, during a pre-trial conference, the ALJ modified this order to apply the formal rules of evidence to evidence regarding exemplary damages under the SDWA and the TSCA. The Respondent moved for reconsideration.

The ALJ noted that the PSIA regulations expressly reject application of formal rules of evidence. See 29 C.F.R. § 1981.107(d); 70 Fed. Reg. 17889, 17892. The regulations applying to the five environmental statutes require application of formal rules of evidence. See 29 C.F.R. § 24.107(a). In the instant case, the complaint alleged that the same conduct violated both the PSIA and the other five statutes, thereby setting up the need to select a framework for questions of admissibility of evidence. The ALJ concluded that simultaneous application of two sets of rules would be unwieldy and unworkable, and that he would apply the regulations that permit an ALJ to waive any rule or to issue any order that justice or administration of the statutes requires. See 29 C.F.R. §§ 24.115, 1981.114. The ALJ rejected the Respondent's contention that such a waiver or order is only permitted upon application of a party, finding that the Respondent had an opportunity to present arguments and to be heard before the wavier is put into place at the hearing.

The ALJ found the less formal evidentiary framework of the PSIA to be more appropriate to apply because they conform to the APA, because the PSIA's burden of proof is more favorable to the Complainant than under the five environmental statutes; with the exception of exemplary damages, the remedies under all the statutes are the same; and "[i]t would arguably infringe on Complainant's due process rights to apply more rigorous evidentiary standards to the [PSIA] because it would reduce his likelihood of success where Congress intended that it be at its highest"; the Respondent would not be unduly burdened as the Complainant only need to prevail on the PSI complaint; the Secretary has favored less formal evidentiary rules in more recently adopted whistleblower regulations; and the ALJ had already ordered the use of more formal rules of evidence in the one area where it could actually disadvantage the Respondent (the exemplary damages issue). The ALJ was not persuaded by the Respondent's argument that it would make more sense to apply the rule for the five environmental statutes, the ALJ finding that due process and general policy considerations outweighed a "majority vote."

The ALJ was not persuaded by the Respondent's argument that the Complainant's pro per status suggests that the court should prefer formal rules. The ALJ found that applying two sets of rules would likely increase the duration and complexity of the hearing. The ALJ stated that he had not based his conclusions in the order based on the Complainant's pro per status, but that if he were to take that into consideration, he would conclude that the hearing would proceed more expeditiously and effectively without formal rules of evidence.

IX M 1 Relationship of CERCLA to Part 24

In Fidler v. Industrial Metal Plating, Inc., 83- CER-2 (Sec'y Apr. 27, 1984), the Secretary adopted the ALJ's recommended decision that the complaint should be dismissed as untimely.

[Editor's note: Although CERCLA indicates that a complainant is entitled to a hearing, presumably before an ALJ, CERLA cases are not enumerated in Part 24. In Fidler , the Secretary did not question the ALJ's issuance of the case in the form of a recommended Decision and Order for review by the Secretary under 29 C.F.R. § 24.6, see Fidler v. Industrial Metal Plating, Inc., 83-CER-2 (ALJ June 27, 1983) (Errata), but this is an old case and the question of whether CER cases are governed by Part 24 was not a central concern.

OALJ has not had much occasion to docket cases using the CER docket number, although it is frequently cited in shotgun pleading. See, e.g., Pogue v. United States Dept. of the Navy, 87-ERA-21 (Sec'y May 10, 1990). In those instances, I am not aware of any party questioning whether the CERCLA case should be processed under Part 24.]

[Nuclear and Environmental Whistleblower Digest IX M 2]
ATTORNEY MISCONDUCT; FIRST AMENDMENT; LIMITATIONS ON IN-COURT SPEECH

In Board of Professional Responsibility v. Slavin , No. M2003-00845-SC-R3-BP (Tenn. Aug. 27, 2004) (unpublished decision available at 2004 WL 1908797), the Tennessee Supreme Court imposed a two-year suspension on an attorney based on, inter alia , that attorney's conduct in administrative law judge hearings before the U.S. Department of Labor. One of the contentions made by the attorney on appeal was that he was being sanctioned for First Amendment protected speech. The court rejected this claim, writing:

    In the context of judicial proceedings, an attorney's First Amendment rights are not without limits. Although litigants and lawyers do not check their First Amendment rights at the courthouse door, those rights are often subordinated to other interests inherent in the judicial setting. See Gentile v. State Bar of Nev. , 501 U.S. 1030, 1071 (1991); United States Dist. Court v. Sandlin , 12 F.3d 861, 866 (9th Cir. 1993); Koster v. Chase Manhattan Bank , 93 F.R.D. 471, 476 (S.D.N.Y. 1982); State v. Carruthers , 35 S.W.3d 516, 560-61 (Tenn. 2000). Thus, while we find that legitimate criticism of judicial officers is tolerable, "an attorney must follow the Rules of Professional Conduct when so doing." Shortes v. Hill , 860 So. 2d 1, 3 (Fla. Dist. Ct. App. 2003). A lawyer is not free to "seek refuge within his own First Amendment right of free speech to fill a courtroom with a litany of speculative accusations and insults." United States v. Cooper , 872 F.2d 1, 3 (1st Cir. 1989).

    The United States Supreme Court stated:

It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to "free speech" an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal.

Gentile , 501 U.S. at 1071.

    "The First Amendment does not preclude sanctioning a lawyer for intemperate speech during a courtroom proceeding." Jacobson v. Garaas (In re Garaas) , 652 N.W.2d 918, 925 (N.D. 2002) (emphasis added). Commenting on Gentile in a disciplinary proceeding, the Supreme Court of Missouri concluded:

An attorney's free speech rights do not authorize unnecessary resistance to an adverse ruling . . . . Once a judge rules, a zealous advocate complies, then challenges the ruling on appeal; the advocate has no free-speech right to reargue the issue, resist the ruling, or insult the judge.

In re Coe , 903 S.W.2d 916, 917 (Mo. 1995).

    In Kentucky Bar Association v. Waller , 929 S.W.2d 181, 183 (Ky. 1996), the Supreme Court of Kentucky observed that the statements need not be false to pursue disciplinary action:

Respondent appears to believe that truth or some concept akin to truth, such as accuracy or correctness, is a defense to the charge against him. In this respect he has totally missed the point. There can never be a justification for a lawyer to use such scurrilous language with respect to a judge in pleadings or in open court. The reason is not that the judge is of such delicate sensibilities as to be unable to withstand the comment, but rather that such language promotes disrespect for the law and for the judicial system. Officers of the court are obligated to uphold the dignity of the Court of Justice and, at a minimum, this requires them to refrain from conduct of the type at issue here.

    Thus, an attorney's speech may be sanctioned if it is highly likely to obstruct or prejudice the administration of justice. "These narrow restrictions are justified by the integral role that attorneys play in the judicial system, which requires them to refrain from speech or conduct that may obstruct the fair administration of justice." Office of Disciplinary Counsel v. Gardner , 793 N.E.2d 425, 428-29 (Ohio 2003).

    Accordingly, we conclude that Slavin's in-court remarks were not protected by the First Amendment. By this holding we intend to limit an attorney's criticisms of the judicial system and its officers to those criticisms which are consistent in every way with the sweep and the spirit of the Rules of Professional Conduct. See Fla. Bar v. Ray , 797 So. 2d 556, 560 (Fla. 2001).

2004 WL 1908797 * 8-9 (footnote omitted).

The Office of Administrative Law Judges has afforded reciprocal effect to the Tennessee Supreme Court's suspension order. In the matter of Slavin , 2004-MIS-5 (ALJ Sept. 28, 2004).

[Nuclear and Environmental Whistleblower Digest IX M 2]
ATTORNEY MISCONDUCT; GIVING RECIPROCAL EFFECT TO SUSPENSION ORDER OF STATE COURT BEFORE WHICH ATTORNEY HELD LAW LICENSE

In In re Slavin , ARB No. 05-003, ALJ No. 2004-MIS-5 (ARB Nov. 30, 2005), the ARB affirmed the Chief Administrative Law Judges' order according reciprocal effect to an order of the Supreme Court of Tennessee suspending Edward A. Slavin, Jr. from the privilege of practicing law for two years. The Chief ALJ had evaluated the case under the Selling v. Radford , 243 U.S. 46 (1917) criteria. The ARB had previously also given reciprocal effect to the Tennessee Supreme Court's suspension order under Selling . Reviewing the matter under a de novo standard of review, the ARB found that Mr. Slavin's petition for review had failed to address the Sellings factors and had not proffered any error in the Chief ALJ's or ARB's application of these factors to the facts of his case.

[Nuclear and Environmental Whistleblower Digest IX M 2]
CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL; CLIENTS ARE HELD ACCOUNTABLE FOR THE ACTS AND OMISSIONS OF THEIR COUNSEL

In Reid v. Niagara Mohawk Power Corp. , ARB No. 03-154, ALJ No. 2003-ERA-17 (ARB Oct. 19, 2004), the Complainant's attorney had failed to respond to the ALJ's order to show cause why the case should not be dismissed based on an untimely request for an ALJ hearing. The Complainant's attorney also failed to respond to the Respondent's motion to dismiss based on the Complainant's failure to respond to the ALJ's order to show cause. The attorney stated that she had mistakenly believed that the order to show cause related to another of the Complainant's pending cases, that the ALJ had already issued a ruling on that issue, and therefore the Respondent motion to dismiss was mistaken as the ALJ had already ruled. The attorney informed the Board that she did not have time to research the issue for appeal as she was about to undergo a medical procedure, and appealed to the "interests of justice." The Complainant filed a pro se brief requesting a remand for hearing based, inter alia , on ineffective assistance of counsel. The Respondent noted that when the request for hearing was made, the Complainant was not yet represented by counsel.

The Board rejected the ineffective assistance of counsel argument, observing that while the Complainant was not personally responsible for his counsel's failure to respond to the ALJ's Order to Show Cause, he is held accountable for the acts and omissions of his attorney, and that if his attorney's conduct fell substantially below what is reasonable under the circumstances, his remedy is against the attorney in a malpractice suit.

[Nuclear and Environmental Whistleblower Digest IX B 2 and IX M 2]
ATTORNEY MISCONDUCT; STRIKING OF BRIEF BEFORE THE ARB BECAUSE OF INAPPROPRIATE INVECTIVE

[Nuclear and Environmental Whistleblower Digest IX M 2]
ATTORNEY MISCONDUCT

See Edward A. Slavin, Jr. , ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), in the Miscellaneous Whistleblower Case Digest for casenotes relating to the standards applicable to a 29 C.F.R. § 18.34(g)(3) suspension proceeding.

[Nuclear and Environmental Whistleblower Digest IX M 2]
ATTORNEY MISCONDUCT; DISQUALIFICATION BY OALJ; AUTHORITY FOR RECIPROCAL DISCIPLINE BY OTHER AGENCIES WITHIN DOL

In Erickson v. U.S. Environmental Protection Agency , ARB No. 04-086, ALJ Nos. 1999-CAA-2 et al (ARB July 14, 2004), the ARB stated that "a denial of authority to appear as a representative in any case before the OALJ may be relied on by other Department of Labor agencies, including this Board, in determining whether the attorney is qualified to represent parties before those agencies." The Board cited in this regard OALJ's order disqualifying an attorney, and Selling v. Radford , 243 U.S. 46 (1917) (discussing guidelines for federal court's determination whether to impose reciprocal discipline following disbarment by either a state court or another federal court).

[Nuclear and Environmental Whistleblower Digest IX M 2]
DISMISSAL FOR CAUSE; COUNSEL'S DELIBERATE AND CONTEMPTUOUS REFUSAL TO COMPLY WITH LAWFUL ORDER OF THE ALJ

An ALJ may recommend dismissal of an ERA whisteblower complaint based upon a party's failure to comply with a lawful order. 29 C.F.R. § 24.6(e)(4)(i). Dismissal of a complaint for failure to comply with the ALJ's lawful orders, however, is a very severe penalty to be assessed in only the most extreme cases. In Puckett v. Tennessee Valley Authority , ARB No. 03-024, ALJ No. 2002-ERA-15 (ARB June 25, 2004), the ARB affirmed the ALJ's recommended dismissal of the complaint where the record supported the ALJ's finding that "Counsel's failure to comply with the Scheduling Order was a deliberate unjustified delaying tactic and a deliberate expression of contempt for the Court...." USDOL/OALJ Reporter at 3 (citations omitted). The ARB also found that the record supported the ALJ's finding that "Counsel has exhibited a drawn out history of deliberately proceeding in a dilatory manner and his continued disregard of the Court's Orders indicates that with anything less than dismissal, counsel will never understand the severity of potential consequences for not complying with the Court's Orders...." USDOL/OALJ Reporter at 3-4 (citations omitted).

[Nuclear and Environmental Whistleblower Digest IX M 2]
ATTORNEY MISCONDUCT AS GROUNDS FOR DISMISSAL OF COMPLAINT; COMPLAINANT NOT PERMITTED TO DISASSOCIATE WITH MISCONDUCT WHERE HE WAS AWARE OF IT AND APPEARED TO RATIFY IT

In Puckett v. Tennessee Valley Authority , ARB No. 03-024, ALJ No. 2002-ERA-15 (ARB June 25, 2004), the ARB affirmed the ALJ's dismissal of the complaint based on the Complainant's counsel's deliberate and contemptuous refusal to comply with a lawful order. The ARB rejected the Complainant's request to permit him to obtain a new attorney and proceed with the case where the Complainant had been aware of his counsel's contumacious refusal to comply with the ALJ's scheduling order, but nevertheless, he continued to ratify his counsel's actions even after the case had been appealed to the ARB.

IX M 2 Disqualification of counsel

In Holub v. H. Nash Babcock, Babcock & King, Inc., 93-ERA-25 (ALJ Dec. 9, 1994), the ALJ disqualified the Respondents' attorney based on the fact that he was concurrently representing the Chief ALJ in a personnel action. On appeal pursuant to 29 C.F.R. § 18.36(b), the Chief ALJ, the Deputy Chief Judge, and the Associate Chief Judge all recused themselves, and because the parties declined to permit the matter to be referred to OPM for selection of the Chief Judge of another agency to hear the appeal, the matter was referred to the Secretary of Labor to determine whether he would accept jurisdiction pursuant to 29 C.F.R. § 18.1(b), which permits the rules of practice to be modified when required to prevent prejudice and to serve the ends of justice. Holub v. H. Nash Babcock, Babcock & King, Inc., 93-ERA-25 (ALJ Dec. 14, 1994) (order of referral).

[ Editor's note: The matter of attorney qualification is covered by the rules of practice and procedure before the OALJ. See 29 C.F.R. § 18.36. The procedure in those rules provides for appeal of a disqualification to the Chief ALJ, rather than a recommended order such as required by Part 24. That the Secretary got involved in this matter at all at this stage only arose as a result of the highly unusual circumstances.]

Neither party objected to the referral to the Secretary, and the Secretary found that it was the Deputy Secretary who brought the personnel matter against the Chief ALJ. Holub v. H. Nash Babcock, Babcock & King, Inc., 93-ERA-25 (Sec'y Feb. 6, 1995) (order reversing disqualification).

[ Editor's note: Although the Secretary did not state so explicitly, it appears that this distinction was necessary to prevent the Secretary from also having to recuse himself.]

The presiding ALJ had found that the Chief ALJ had made an ex parte communication with Respondents' attorney when the attorney raised the issue of a potential conflict of interest with the Chief ALJ. The Secretary found that this communication was not an impermissible ex parte communication because it did not concern a fact in issue in the proceeding on the merits of Complainant's whistleblower complaint, and because it was not made to a person involved in the decisional process of the case.

The Secretary rejected the possibility of undue influence by the Chief ALJ over the presiding ALJ, noting that the Chief ALJ had no substantive or procedural role in the case (the Chief ALJ being on the record that he has a conflict that would preclude him from playing any procedural or substantive role in the future), and that the presiding ALJ has statutorily protected tenure of office and does not receive performance ratings. The Secretary rejected the potential for shared confidences, because of the lack of relation between the personnel matter and the whistleblower matter.

The Secretary found that the fact that Respondents' counsel and/or expert on legal ethics contacted the Chief ALJ to determine whether he would recuse himself did not create an actual conflict of interest. The need for the contact only arose as a result of a disqualification motion. The Secretary stated that "[t]he complainant should not benefit from a disqualification motion filed on his behalf which creates previously nonexistent grounds for disqualification."

Thus, weighing the right of a party to legal counsel of his or her choice against the need to avoid ethical conflicts, the Secretary reversed the ALJ's order of disqualification.

[Nuclear & Environmental Whistleblower Digest IX M 2]
ATTORNEY QUALIFICATION PROCEEDING

See In re Slavin , 2004 MIS 2 and 2004 STA 12 (ALJ Mar. 31, 2004), casenoted in STAA Digest II M regarding the procedures for conducting a 29 C.F.R. § 18.34(g) hearing to determine the qualifications of an attorney.

[Nuclear & Environmental Whistleblower Digest IX M 2]
DISQUALIFICATION OF COUNSEL; DUAL REPRESENTATION OF RESPONDENTS NOT SHOWN TO BE PREJUDICIAL TO COMPLAINANT

In Turpin v. Lockheed Martin Corp. , 2001 ERA 37 (ALJ Nov. 29, 2001), Complainant moved to disqualify a law firm and the General Counsel of a successor contractor from representing both the former contractor and the successor contractor of the Department of Energy facility where Complainant was formerly employed. In Turpin v. Lockheed Martin Corp. , ARB No. 02 101, ALJ No. 2001 ERA 37 (ARB Jan. 29, 2004), the ARB affirmed the ALJ's dismissal of the motion, quoting the ALJ's finding: "Complainant has not shown how he will be prejudiced if both Respondents have the same counsel, and I can find no justification for disqualifying counsel from representing two defendants in a proceeding such as the present case."

[Nuclear & Environmental Whistleblower Digest IX M 2]
APPEAL OF ATTORNEY DISQUALIFICATION WHERE CHIEF ALJ AND ASSOCIATE CHIEF ALJS MUST RECUSE; SPECIAL JURISDICTION OF ARB OVER SECTION 18.36 DISQUALIFICATION; JURISDICTION OVER SECTION 18.34 DENIAL OF APPEARANCE

In In re Slavin , ARB No. 02 109, ALJ No. 2002 SWD 1 (ARB June 30, 2003), Complainant's counsel had been disqualified pursuant to 29 C.F.R. § 18.36(b) of the OALJ Rules of Practice and Procedure. Although such a disqualification is appealable to the Chief ALJ, in the case at bar the Chief ALJ recused himself and jurisdiction of this appeal was conferred on the ARB by the Secretary's Order of Referral pursuant to Section 18.1(b). The Board noted that the same circumstances requiring the Chief ALJ's recusal also applied to the Associate Chief ALJs.

[Editor's note: In Slavin , the ARB also considered whether sanctions recommended by the ALJ under 29 C.F.R. § 18.34(g)(3) [denial of authority to appear] could be upheld. See Slip op. at n.4. The OALJ Rules of Practice do not state the procedure for appeal of section 18.34(g)(3) sanctions as compared to the express interlocutory appeal to the Chief ALJ of a disqualification of an attorney under section 18.36. It would appear that issues relating to a section 18.34(g)(3) disqualification would normally carry with the underlying case and that in a matter under the ARB's usual jurisdiction it would be the appropriate review authority. In Slavin , by the time the section 18.36 disqualification appeal was being considered by the ARB it also had the underlying whistleblower complaint before it.]

[Nuclear & Environmental Whistleblower Digest IX M 2]
DISQUALIFICATION OF COUNSEL; AUTHORITY OF ALJ TO MAKE REFERRAL TO BOARD OF PROFESSIONAL RESPONSIBILITY

In In re Slavin , ARB No. 02 109, ALJ No. 2002 SWD 1 (ARB June 30, 2003) (ARB sitting by special designation on appeal from disqualification), the ARB noted that the inclusion in an ALJ's order of disqualification of Complainant's counsel of a direction that a copy of the order and relevant portions of the case record be forwarded to the Board of Professional Responsibility for the State where the attorney is licensed was "consistent with the reporting by Federal courts and agencies of attorney misconduct and disciplinary sanctions against attorneys to licensing jurisdictions, as an aid to state bar authorities in the exercise of their oversight responsibilities. See generally ABA Model Code of Judicial Conduct, Canon 3D, Disciplinary Responsibilities; 61 Fed. Reg. 65323, 65330 31 (Dec. 12, 1996) (Final rule, 29 C.F.R. Part 102, National Labor Relations Board, discussing NLRB policy of notifying state bar authorities of disciplinary sanctions the agency has imposed on attorneys)."

[Nuclear & Environmental Whistleblower Digest IX M 2]
DISQUALIFICATION OF COUNSEL; ALJ PROPERLY RETAINS CASE RECORD DURING APPEAL

Where an appeal is taken from an order of disqualification of counsel under 29 C.F.R. § 18.36, the presiding ALJ properly retains the case record in order to resume adjudication of the underlying case. In re Slavin , ARB No. 02 109, ALJ No. 2002 SWD 1 (ARB June 30, 2003). In Slavin , the ARB had ordered the ALJ to provide copies of relevant documents and Complainant thereafter requested that the ALJ be ordered to forward the "complete" record to Complainant and her counsel. The ARB, however, found that the ALJ had complied with its earlier order, and declined to grant Complainant's request.

[Nuclear & Environmental Whistleblower Digest IX M 2]
ATTORNEY QUALIFICATIONS AND BEHAVIOR; DISTINCTIONS BETWEEN AND IMPLICATIONS OF SECTIONS 18.34(g)(3) and 18.36

In In re Slavin , ARB No. 02 109, ALJ No. 2002 SWD 1 (ARB June 30, 2003), the ARB explained the differing policies served by and procedures employed by the OALJ Rules of Practice regarding an attorney's professional standing, 29 C.F.R. § 18.34(g)(3), and conduct during a case adjudicated before OALJ, 29 C.F.R. § 18.36. Section 18.34(g)(3) authorizes denial of an attorney's authority to represent a party based on a lack of certain enumerated qualifications, and provides for notice of and opportunity for a hearing on the matter. Reviewing the decision and subsequent remand order in Rex v. Ebasco Services , 1987 ERA 6 and 40, the ARB concluded that the Secretary of Labor had ruled that a formal hearing is contemplated under that regulation, with DOL bearing "the burden of proving, by a preponderance of the evidence, the allegations of misconduct against the attorneys reflects the gravity of a bar under Section 18.34(g)(3)...." Section 18.36, which addresses exclusion of a representative from further participation in a particular case being adjudicated before an ALJ, however, contemplates a more summary process. That section only requires that the case record reflect the reason for the ALJ's exclusion of the attorney; the appeal is to the Chief ALJ* with no suspension of the underlying case during the appeal.

The ARB observed that exclusion from participation in a particular case under section 18.36 has less far reaching implications than disqualification under section 18.34(g)(3), which bars an attorney from representing parties in future cases.

The ARB observed that the summary procedure of section 18.36 was similar to processes established by other Federal agencies for halting disruptive behavior that would otherwise defeat the conduct of orderly proceedings.

________
* In Slavin , the Chief ALJ had recused himself because of professional and personal relationship with Mr. Slavin's client, and the Secretary had designated the ARB to hear the appeal.

[Nuclear & Environmental Whistleblower Digest IX M 2]
DISQUALIFICATION UNDER SECTION 18.34(g)(3) REQUIRES NOTICE OF OPPORTUNITY FOR A FORMAL HEARING

In In re Slavin , ARB No. 02 109, ALJ No. 2002 SWD 1 (ARB June 30, 2003), the ARB found that an ALJ's disqualification of an attorney under section 18.34(g)(3) without notice of an opportunity for a formal hearing does not comply with that regulation's procedural requirements, and therefore declined to uphold the ALJ's order barring counsel from appearing as a representative or serving in an advisory capacity to a party in any matter to come before the ALJ in the future. In contrast, the ALJ's order to show cause and other actions [prior admonishment to refrain from certain behaviors; consideration of documents filed with the ARB as possibly being responsive to the order to show cause] clearly provided adequate notice under section 18.36.

In a concurring opinion, one member of the Board further explained how the procedure followed by the ALJ was defective under section 18.34(g)(3), suggesting that the primary defect was that the ALJ's order to show cause only provided notice of the charges and not the opportunity to request a hearing:

Although Attorney Slavin's conduct may well have violated the substantive portions of § 18.34(g)(3), it is unnecessary to address that question. ALJ Cregar did not satisfy the regulation's procedural requirements. Under § 18.34(g)(3), an ALJ must afford "notice" and "opportunity for hearing" before the ALJ can deny a representative authority to appear. Although the show cause order was likely adequate notice of the charges, ALJ Cregar did not schedule the issue for a hearing or afford Attorney Slavin the opportunity to request one before denying him the authority to appear. Disqualification under 29 C.F.R. § 18.34(g)(3) is therefore procedurally defective and must be reversed.

y colleagues appear to adopt an expansive view of 29 C.F.R. § 18.34(g)(3) that is not found in the text or the interpretive caselaw; and I write separately out of concern that their position will be misinterpreted. The text of § 18.34(g)(3) says hearing not formal hearing, see Majority Opinion at 11 12, by which I take it my colleagues mean "evidentiary hearing." Rex v. Ebasco Services , 87 ERA 6, 40 (Sec'y Mar. 4, 1994) held only that an ALJ is limited to the remedies available under 29 C.F.R. § 18.34(g)(3) and § 18.36 and may not import Rule 11 from the Federal Rules of Civil Procedure to award attorney's fees as a sanction. Rex v. Ebasco Services , 87 ERA 6, 40 (Sec'y Oct. 3, 1994) ruled that the Chief ALJ could designate a single ALJ to rule on the fitness of two counsel to appear generally in DOL cases. Rex did not delimit the nature or scope of any such hearing.

In my view, 29 C.F.R. § 18.34(g)(3) does not mandate that a different ALJ conduct the disqualification hearing than the one assigned to the merits of the case; that the hearing must be an evidentiary hearing (e.g., where the facts are not in dispute); that the use of the word "hearing" would authorize calling the ALJ seeking disqualification as a witness (as Attorney Slavin seems to suggest by noting ALJ Cregar on his witness list); or that a denial of authority to appear in one case under § 18.34(g)(3) necessarily applies to all other cases (e.g., where there is a conflict of interest in only one case). I conclude only that ALJ Cregar failed to afford Attorney Slavin an opportunity for a hearing as § 18.34(g)(3) requires and consequently that regulation cannot provide a basis for denying Attorney Slavin the authority to represent the Complainant in the Greene whistleblower case and from representing any other party in any other case that might come before ALJ Cregar. However, a remand to ALJ Cregar to conduct a hearing is not required, since I also hold that 29 C.F.R. § 18.36 afforded the ALJ a sufficient independent basis for disqualifying counsel in the Greene whistleblower case.

[Nuclear & Environmental Whistleblower Digest IX M 2]
ATTORNEY DISQUALIFICATION; FILING OF INTERLOCUTORY APPEAL WITH ARB ON ANOTHER ISSUE DOES NOT DIVEST ALJ OF AUTHORITY TO ISSUE DISQUALIFICATION ORDER

In In re Slavin , ARB No. 02 109, ALJ No. 2002 SWD 1 (ARB June 30, 2003), the ARB ruled that the filing of an interlocutory appeal contesting the presiding ALJ's denial of recusal does not divest the ALJ of jurisdiction to issue an Order of Disqualification of counsel under 29 C.F.R. § 18.36. The ALJ had previously issued an order to show cause under section 18.36. The ARB observed that the "Petitioners' contention that the ALJ was divested of jurisdiction is tantamount to a suggestion that a party whose representative has provoked an ALJ to take action under Section 18.36 can easily thwart the ALJ's authority by filing an interlocutory appeal with the ARB. Such practice would undermine the ALJ's obligation to ensure the orderly conduct of the hearing and the timely resumption of proceedings following a Section 18.36 exclusion."

[Nuclear & Environmental Whistleblower Digest IX M 2]
FAILURE TO RESPOND TO ORDER TO SHOW CAUSE UNDER SECTION 18.36 RESULTS IN WAIVER OF RIGHT TO CONTEST FACTS IN LATER PROCEEDINGS

In In re Slavin , ARB No. 02 109, ALJ No. 2002 SWD 1 (ARB June 30, 2003), neither Complainant nor her counsel responded to the presiding ALJ's order to show cause why counsel should not be disqualified under 29 C.F.R. § 18.36. On appeal, the petitioners requested that the ARB conduct a formal hearing on their allegation of impropriety in the assignment of the presiding judge. The ARB observed that section 18.36 does not provide any guidance on the procedures to be following on appeal of a section 18.36 disqualification. The ARB found that the contentions relating to assignment of the presiding judge were not relevant, and that the petitioner's failure to respond to the presiding ALJ's order to show cause was a failure to contest the facts cited in support of the order to show cause by the ALJ. The ARB therefore held that "[t]he Petitioners also waived their right to contest those facts at a later stage of the proceeding. Cf. 29 C.F.R. § 18.5(b), (d)(1) (Responsive pleadings B answer and request for hearing, Default; Orders to Show Cause)."

[Editor's note: Although presented as an issue of waiver of the right to an evidentiary hearing on appeal for failure to respond to an order to show cause, a more fundamental question is whether there is any right to such an evidentiary hearing during a section 18.36(b) appeal, or whether such an appeal is more in the nature of typical appellate review. The concurring opinion in Slavin stated that he was reviewing the ALJ's finding of fact de novo . The concurring opinion also stated that in a hearing on counsel's disqualification, counsel would not have the right to call the presiding judge as a witness to testify about the circumstances of his appointment and qualifications to preside over the underlying case.]

[Nuclear & Environmental Whistleblower Digest IX M 2]
ORDER OF DISQUALIFICATION; STATEMENT IMPUNGING THE INTEGRITY OF OALJ AND THE PRESIDING ALJ WITH RECKLESS DISREGARD FOR THE TRUTH

In In re Slavin , ARB No. 02 109, ALJ No. 2002 SWD 1 (ARB June 30, 2003), the ARB found that the presiding ALJ properly disqualified Complainant's counsel under 29 C.F.R. § 18.36 where B among other reasons B the record established that counsel "acted for reckless disregard for the truth when he asserted that improper contacts between DOL OALJ and the ALJ occurred and facilitated a conspiracy to deny the Complainant a full and fair hearing in her whistleblower complaint." In so ruling, the ARB stated their agreement with the ALJ's discussion that "an attorney who impugns the integrity of a judge based on 'personal feelings or belief, innuendo, suppositions, or rumors, or '"jumping to conclusions"' instead of a sound factual basis acts recklessly and unprofessionally."

The ARB did not reach the ALJ's finding that counsel had knowingly made the false statements in view of its affirmance of the ALJ's alternative finding that counsel made the statements with reckless disregard for their truth.

[Nuclear & Environmental Whistleblower Digest IX M 2]
ORDER OF DISQUALIFICATION; OFFENSIVE STATEMENTS IN PLEADINGS

In In re Slavin , ARB No. 02 109, ALJ No. 2002 SWD 1 (ARB June 30, 2003), the ARB found that the presiding ALJ properly disqualified Complainant's counsel under 29 C.F.R. § 18.36 for B among other reasons B making statements in pleadings that are personally offensive to the ALJ, other Federal officials and opposing counsel. The ARB agreed with the ALJ's discussion that "such statements are readily distinguishable from assignments of error, which properly specify a ruling and frame arguments regarding that ruling in terms of relevant legal standards." The ARB wrote:

The Petitioners assert that the objectionable statements about the ALJ were "fully justified by his refusal to conduct an on the record conference call[], the threatening manner of his off the record conference call followed by an eight page order intimidating, coercing and restraining protected activity; his violations of the First Amendment; and his violation of Judge Greene's rights." Comp. July 16, 2002 Resp. to Prehearing Ord. at 19. The Petitioners' contention is based on a premise that is completely at odds with the standards governing attorney conduct. It is well settled that an attorney is not relieved of his professional obligation to show respect for a hearing officer because the officer issues rulings or takes other action that the attorney views as erroneous. See, e.g., Office of Disciplinary Coun. v. Mills , 755 N.E.2d 336, 338 (Ohio 2001). When a representative believes that a hearing officer has committed error in his conduct of proceedings, the proper course is for the representative to respectfully pursue the appropriate challenge, articulated in terms of relevant legal authority, through legitimate channels. See Bieber v. Dep't of the Army , 287 F3d 1358, 1361 64 (Fed. Cir. 2002) (addressing challenge to administrative judge's conduct of hearing under 5 U.S.C. § 556(b)); see also MacDraw, Inc. v. CIT Group Equip. Fin. , 994 F.Supp. 447, 459 61 (S.D.N.Y. 1997) (observing that attorney in the case has "a history of accusing judges of bias or prejudging cases" and discussing the proper manner in which an attorney who has a reasonable basis should pursue a bias charge).

(footnote omitted).

[Nuclear & Environmental Whistleblower Digest IX M 2]
ORDER OF DISQUALIFICATION; REFUSAL TO COMPLY WITH ALJ'S ORDER REGARDING PROPER CITATION OF LEGAL AUTHORITY

In In re Slavin , ARB No. 02 109, ALJ No. 2002 SWD 1 (ARB June 30, 2003), the ARB found that the presiding ALJ properly disqualified Complainant's counsel under 29 C.F.R. § 18.36 for B among other reasons B counsel's failure to comply with the ALJ's directive to representatives for both parties to use proper citation to authorities.

[Nuclear & Environmental Whistleblower Digest IX M 2]
DISQUALIFICATION OF COUNSEL; RELEVANCE OF PRIOR MISCONDUCT

In In re Slavin , ARB No. 02 109, ALJ No. 2002 SWD 1 (ARB June 30, 2003), the majority opinion found that the presiding ALJ had properly disqualified Complainant's counsel under 29 C.F.R. § 18.36 for overstepping the bounds of zealous representation and responsible criticism of judges and the legal system, and for failing to follow the ALJ's directives regarding the use of emotionally laden and offensive language in pleadings and regarding the proper use of citations to legal authority. The majority wrote: "The foregoing grounds, along with the history of unprofessional conduct engaged in by Counsel in previous cases and Counsel's failure to respond to the ALJ's OSC, provide more than adequate support for the ALJ's exclusion of Counsel from further participation in the Greene case."

In a concurring opinion, one member of the Board wrote:

I would use the cumulative effect of past misconduct as a factor in considering a permanent denial of authority to appear after notice and hearing under 29 C.F.R. § 18.34(g)(3). However, the fact that a lawyer has been disqualified, sanctioned, or cited for improper professional conduct in other cases has little probative value on the question of whether he has engaged in separate misconduct in the case in which an ALJ is considering his disqualification. Nevertheless, in determining whether there were grounds for disqualifying Attorney Slavin under § 18.36, the fact that he may have been disqualified, sanctioned, or cited for improper professional conduct in eight other cases could be considered on the issue of notice; he knew or should have known that his failure to conform to norms of ethics and civility and his failure to obey court rulings could lead to his being sanctioned or removed. Therefore, to the extent that the ALJ considered prior misconduct to prove present misconduct under § 18.36, I believe that was error. Regardless, counsel's conduct in the Greene whistleblower case provided sufficient grounds for his disqualification under § 18.36, without consideration of alleged misconduct in other cases.

[Nuclear & Environmental Whistleblower Digest IX M 2]
DUTY OF ALJ TO INQUIRE INTO ALLEGATION OF ATTORNEY CONFLICT OF INTEREST

In Duncan v. United States Secretary of Labor , No. 01 71647 (9th Cir. May 30, 2003) (unpublished) (available at 2003 WL 21259780) (case below ARB No. 99 011, ALJ No. 1997 CAA 12), Complainant alleged that he was denied a fair hearing because of the ALJ's treatment of a letter sent by a co complainant to the ALJ asserting that their attorney had a conflict of interest and averring that Complainant intended to lie under oath. The court found that the ALJ properly disclosed the letter and pursued an inquiry, noting that an ALJ had a duty to determine whether an attorney should be disqualified for a conflict of interest, citing Smiley v. Director, OWCP , 984 F.2d 278, 282 (9th Cir. 1993). The court stated that such an inquiry is well within the "broad discretion" given to judges in supervising trials. The court also noted that the record did not indicate any bias or impartiality on the part of the ALJ.

[Nuclear & Environmental Whistleblower Digest IX M 2]
DISQUALIFICATION OF COUNSEL; APPEAL PROCEDURE WHERE CHIEF ALJ UST RECUSE

See Greene v. U.S. Environmental Protection Agency , 2002 SWD 1, Nuclear & Environmental Digest at VII A 5.

[Nuclear & Environmental Whistleblower Digest IX M 2]
DISQUALIFICATION OF COUNSEL; ABUSIVE AND FALSE STATEMENTS; FLOUTING OF ALJ'S ORDER ON CORRECT CITATION OF DECISIONS

In Greene v. U.S. Environmental Protection Agency , 2002 SWD 1 (ALJ June 20, 2002), the presiding ALJ disqualified counsel for Complainant where counsel had made insulting, abusive, unprofessional, and false statements, and had failed to comply with an order to end the incorporation of inappropriate and uncivil language in pleadings, to refrain from string citations unless necessary to articulate different aspects of the contention, and to provide pinpoint citations and synopses of rulings cited. Specifically, counsel had alleged that DOL OALJ and the presiding judge had engaged in improper conduct regarding the judge's appointment. The ALJ found that counsel had reason to know that the allegation was false when it was made. In addition, in pleadings filed with the judge, counsel had made statements such as that the presiding judge was "incurious and unscholarly," had made rulings that were "nasty, brutish, and short (and bordering dangerously on bullying)," that the presiding judge's agency stood to gain financially if the judge stinted on the time spent on the case, that the judge was a "cat's paw" for other federal agencies, etc. Finally, counsel continued to cite cases out of conformance with the ALJ's order. In the order of disqualification the ALJ illustrated with examples from counsel's filings why such citations were often not relevant to the issues in the instant proceeding, and why it was a waste of judicial resources to check improperly cited decisions.

The ALJ found that counsel's conduct violated 29 C.F.R. §§ 18.34(g)(3) and 18.36, the ABA's Model Rules of Professional Conduct, and the rules of professional conduct adopted by the Supreme Court of Tennessee before which counsel was licensed. Given counsel's history of unprofessional conduct in other cases, the ALJ found that disqualification was the appropriate sanction.

[Nuclear & Environmental Whistleblower Digest IX M 2]
BRIEFS; GRATUITOUS DISPARAGEMENT OF ALJ DOES NOT SERVE CLIENT'S INTERESTS

In Puckett v. Tennessee Valley Authority , ARB No. 02 070, ALJ No. 2002 ERA 15 (ARB Sept. 26, 2002), Respondent moved to strike Complainant's brief because it contained "scandalous, disparaging, and impertinent remarks" about the ALJ. The ARB found that Complainant's argument was "on the razor's edge of acceptability" but was not of the same degree of "immaterial, offensive excoriation" for which it had sanctioned Complainant's counsel in Pickett v. TVA , ARB No. 00 076, ALJ No. 1999 CAA 25 (ARB Nov. 2, 2000). The Board, however, quoted from Pickett , to reiterate that such an approach in a brief does not serve the interests of a client.

[Nuclear & Environmental Digest IX M 2]
ATTORNEY CONDUCT; VITRIOLIC ATTACKS ON ALJ

Vitriolic attacks on administrative law judges are inconsistent with a lawyer's ethical obligations, and cannot substitute for sound legal argument. Cox v. Lockheed Martin Energy Systems, Inc. , ARB No. 99-040, ALJ No. 1997-ERA-17 (ARB Mar. 30, 2001), citing Pickett v. TVA , ARB No. 00-076, ALJ Nos. 99-CAA-25, 00-CAA-9 (ARB Nov. 2, 2000) (order striking brief).

[Nuclear & Environmental Digest IX M 2]
LITIGANT CONDUCT; VITUPERATIVE BEHAVIOR

In Hasan v. Commonwealth Edison Co. , ARB No. 01-002, ALJ No. 2000-ERA-8 (ARB Apr. 23, 2001), a Respondent moved to strike Complainant's pro se brief because it devoted significant text to heaping abuse on DOL, the ALJ, various attorneys, and others. The ARB stated that if the brief had been filed by an attorney, it would not have hesitated to strike it; however, it would allow considerably more leeway to a pro se litigant. Thus, the ARB did not strike the brief. The ARB noted, however, that "it is reasonable for a court to demand that all litigants - including pro se litigants - comport themselves with a measure of civility and respect for the tribunals that hear their cases. Among pro se litigants, this proposition applies particularly to litigants such as [Complainant], who has significant litigation experience. Not only is vituperative behavior by a litigant unwarranted and inappropriate, it ultimately is self-defeating because it detracts from a complainant's ability to make a sound legal argument in support of his case."

[Nuclear & Environmental Digest IX M 2]
PRO SE LITIGANT; REQUEST FOR SANCTIONS FOR ALLEGED VIOLATIONS OF RULES ON SUBMISSION OF EVIDENCE

In Hasan v. Commonwealth Edison Co. , ARB No. 00-043, ALJ No. 1999-ERA-17 (ARB Dec. 28, 2000), Complainant had submitted new evidence in his rebuttal brief, and Respondent objected. Complainant filed a response to Respondent's objection, which also included extra-record information. Respondent again objected, and moved for sanctions for repeated violations of the rules on submission of evidence. Although the ARB found that Complainant's submissions would not be permitted under 29 C.F.R. § 18.54(c) (once record closed, additional evidence may be received only if it is new and material, or was not readily available prior to the close of the record), it declined to impose sanctions, holding that a pro se litigant cannot reasonably be expected to plead his or her case with the precision of an attorney.

[Nuclear and Environmental Digest IX.M.2.]
PRACTICE BEFORE ARB; STRIKING OF BRIEF CONTAINING IMMATERIAL, OFFENSIVE EXCORIATION OF ALJ

In Pickett v. Tennessee Valley Authority , ARB No. 00-076, ALJ Nos. 1999-CAA-25 and 2000-CAA-9 (ARB Nov. 2, 2000), the ARB granted Respondent's motion to strike Complainant's brief where it contained "'personal and vitriolic attacks on a Department of Labor Administrative Law Judge,' Williams v. Lockheed Martin Corporation , ALJ Case Nos. 98-ERA-40, 98-ERA- 42; ARB Nos. 99-054, 99-064; Final Decision and Order, slip op. at 5 (Sept. 29, 2000)." The ARB pointed out that the obligation to represent clients with zeal and fidelity within the rules does not conflict with "the requirement that counsel refrain from immaterial, offensive excoriation of the ALJs before whom he appears." Slip op. at 3, citing Rhesa Hawkins Barkdale, The Role of Civility in Appellate Advocacy , 50 South Carolina Law Review 573, 577 (1999). In order not to penalize Complainant for his attorney's professional lapse, however, the Board granted permission to resubmit the brief after all personally disparaging remarks were removed.

Complainant's counsel moved for reconsideration, and for a hearing on the motion for consideration, on the ground that the ARB's order striking the brief violates Complainant's right to free expression. The ARB in Pickett v. Tennessee Valley Authority , ARB No. 00-076, ALJ Nos. 1999-CAA-25 and 2000-CAA-9 (ARB Nov. 16, 2000), denied the motion, finding that Complainant's counsel misapprehended the order, which addressed the professional obligation of an attorney. An attorney, the ARB wrote, quoting its November 2, 2000 order, "has the right to criticize rulings of the ALJ with which his client disagrees [but] he has no right to engage in disrespectful and offensive attacks upon the ability and integrity of the ALJ; such attacks violate counsel's 'professional obligation to demonstrate respect for the courts.' Id . at 6. Accord ABA Model Rules of Professional Conduct, Rules 3.5 and 8.2 (1999)."

See also 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), slip op. at 17 n.10 (describing same attorney's attacks on the presiding judge as factually inaccurate and insulting, and in disregard of Rules 3.5 and 8.2).

[Nuclear & Environmental Digest IX M 2]
ATTORNEY MISCONDUCT; PURSUIT OF FRIVOLOUS COMPLAINT; DEMONSTRATION OF DISRESPECT FOR THE COURTS

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 criticized Complainant's counsel for his pursuit of a frivolous complaint and for his "personal and vitriolic attacks" on the presiding administrative law judge. The ARB found counsel's characterizations of the ALJ's actions to be factually inaccurate and insulting, and pointed out the professional obligation of attorneys to demonstrate respect for the courts, citing ABA Model Rules of Professional Conduct, Preamble, Rules 3.5 and 8.2 (1999); 29 C.F.R. § 18.36.

[Nuclear & Environmental Digest IX M 2]
ATTORNEY CONDUCT; MISSTATEMENT OF APPLICABLE LAW

In Amato v. Assured Transportation & Delivery, Inc. , ARB No. 98-167, ALJ No. 1998-TSC-6 (ARB Jan. 31, 2000), the ARB criticized Respondent's counsel for citing case law that had been explicitly reversed by the U.S. Supreme Court. The Board wrote: "Not surprisingly, the Board looks with strong disfavor on attorneys who misstate the applicable law and who rely on cases which have been reversed, as Assured's counsel has done here. Accord American Bar Association, Model Rules of Professional Conduct (1995 ed.), Rule 3.3(a)(3) Candor Toward the Tribunal."

[Nuclear & Environmental Digest IX M 2]
ATTORNEY MISCONDUCT; SUBMISSION OF DOCUMENTS TO ATTACK ALJ'S REPUTATION RATHER THAN MERITS OF DECISION

In Johnson v. Oak Ridge Operations Office , ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30, 1999), Complainant's counsel submitted several documents to the ARB during the briefing period and subsequent thereto, seeking to have them considered. One of the documents was an autopsy report on the presiding ALJ, who died several months after issuing the recommended, ostensibly presented to demonstrate that the ALJ was in some way unbalanced, and therefore her rulings were tainted. The ARB excluded the autopsy report and counsel's letter submitting the report. The ARB wrote:

An administrative law judge's decisions stand or fall on their merits. We have reviewed the record in this case, and find nothing improper in any of the rulings of the presiding ALJ. Indeed, it is clear that the ALJ went to extraordinary lengths to be fair and objective to Complainants, notwithstanding the difficult behavior of their counsel.

Attorneys have a professional obligation to demonstrate respect for the courts. See ABA Model Rules of Professional Conduct Rules 3.5 and 8.2 (1999); 29 C.F.R. §18.36. It is clear to us - as it no doubt was clear to counsel - that the autopsy report is completely irrelevant to the merits of Complainants' challenge to the ALJ's rulings. To the extent that the report is offered by counsel in an effort to sully the reputation of the ALJ posthumously, such a personal attack is contemptible.

[Nuclear & Environmental Digest IX M 2]
FRIVOLOUS COMPLAINT; ALJ'S LIMITED ABILITY TO SANCTION

In Williams v. Lockheed Martin Corp. , 1998-ERA-40 and 42 (ALJ Mar. 22, 1999), the ALJ, after granting summary decision in favor of Respondents, concluded that the complaints were "frivolous in the worst sense of the word" -- that Complainants' counsel had concocted allegations that were patently false. The ALJ noted that he had spent many hours attempting to manage the case, including reams of paper relating to discovery, but expressed frustration in finding a meaningful sanction for Complainant's counsel's "unsavory pursuit of the complaints...." The ALJ ordered Complainant's counsel suspended from further participation before OALJ in the case pursuant to 29 C.F.R. § 18.36, although he noted that such an action was a moot point once the motion for summary decision was granted.

[Nuclear & Environmental Digest IX M 2]
AGENCY'S INHERENT POWER TO SET AND ENFORCE STANDARDS OF CONDUCT

In Macktal v. Brown & Root, Inc. , 86-ERA-23 (ARB Nov. 20, 1998), in discussing whether an agency has the inherent authority to reconsider its decisions, the ARB listed areas in which it was beyond dispute that agencies have inherent authorities. The Board wrote: "Nor can there be any doubt that administrative tribunals have inherent authority to bar persons from appearance before them on grounds of improper conduct. Goldsmith v. United States Board of Tax Appeals , 270 U.S. 117 (1926). Similarly, agencies have inherent authority to set and enforce standards of conduct for attorneys while appearing before them. Touche Ross & Co. v. SEC , 609 F.2d 570, 581 (2d Cir. 1979)." Macktal , 86-ERA-23 @ n.3.

[Nuclear & Environmental Digest IX M 2]
ATTORNEY DISQUALIFICATION; PROPER FORUM FOR APPEAL

In Rockefeller v. U.S. Dept. of Energy , 1998-CAA-10 and 11 (ARB Oct. 14, 1998), the ARB set a briefing schedule for Complainant's petition for review of the ALJ's recommended decision. Complainant's attorney had also petitioned the ARB for review of the ALJ's Order Barring Counsel from Future Appearances. The ARB noted that "[a]ttorneys who are suspended or barred by an ALJ may appeal such action to the Chief Administrative Law Judge. 29 C.F.R. § 18.36(b) (1998)."

[Nuclear & Environmental Digest IX M 2]
ATTORNEY DISQUALIFICATION; CONTEMPTUOUS FILINGS IN PENDING CASE

In Rockefeller v. U.S. Dept. of Energy , 1998-CAA-10 and 11 (ALJ Sept. 28, 1998), the ALJ issued an Order Barring Counsel From Future Appearances based on Complainant's counsel's filing of a document entitled "Objection to ALJ's Conduct of Proceedings and Motion for Leave to File Motion for Judicial Recusal." Following receipt of Complainant's counsel's response to an order to show cause, the ALJ found that the document was contemptuous on its face. The ALJ noted that an attorney making derogatory statements without legal grounds in a motion to disqualify a trial judge constitutes misconduct due to its significant impact on the judicial system. The ALJ noted that he is not invested with contempt power, but that contemptuous conduct nonetheless calls into question the fitness of a lawyer to practice. Because of the lack of contempt power, the ALJ noted, the only available remedy is the disqualification provisions of Part 18.

The ALJ also noted that counsel's conduct was not isolated -- that he had previously filed similar documents before the ALJ previously -- and that another ALJ had also previously barred counsel because of his continuing pattern of wilful misconduct.

The ALJ rejected counsel's claim that his remarks were protected by the First Amendment, noting that abusive remarks critical of the judiciary are not so protected where those remarks are false and prejudicial to the administration of justice. The ALJ also noted that "[a] distinction must be made between out of court criticisms, opinions, and remarks about a judge which may be protected by the First Amendment and in court speech or court documents of the same nature directed to the judge which are contemptuous and constitute improper professional conduct or violate standards of conduct."

[Nuclear & Environmental Digest IX M 2]

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.

[Nuclear & Environmental Digest IX M 2]
REQUIREMENT THAT LITIGANTS AND ATTORNEYS ACT WITH INTEGRITY AND IN AN ETHICAL MANNER IN DOL PROCEEDINGS

In Espinosa v. Allied Signal, Inc. ,1996-WPC-2 (ARB Aug. 18, 1998), the ARB declined to approve a settlement agreement until additional fact finding was done by the ALJ concerning an apparent material misrepresentation made to the DOL by a litigant or an attorney during the processing of Complainant's FWPCA complaint. In the decision, the ARB discussed the power to regulate the conduct of persons appearing before DOL:

Addressing the need for litigants to act with integrity in matters before the federal courts, the Supreme Court has noted that courts have the inherent power to regulate the conduct of the persons appearing before them. Chambers v. NASCO, Inc. , 501 U.S. 32 (1991), reh'g denied 501 U.S. 1269 (1969); Universal Oil Products Co. v. Roof Refining Co. , 328 U.S. 575, 580 (1946); see also Shepherd v. American Broadcasting Cos., Inc. , 62 F. 3d 1469, 1472-75 (D.C. Cir. 1995). The issue of fraudulent misrepresentations by parties or their counsel is especially troubling, because "tampering with the administration of justice ... involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public." Chambers at 44, quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co. , 322 U.S. 238, 246 (1944).

Espinosa ,1996-WPC-2 @ 3-4.

[N/E Digest IX M 2]
UNETHICAL CONDUCT; FABRICATION OF EVIDENCE

In Roberts v. Rivas Environmental Consultants, Inc. , 96-CER-1 (ARB Sept. 17, 1997), Employer attempted to establish that Complainant had fabricated evidence. The ALJ found that Employer had established that the allegedly fabricated evidence (a memorandum purporting to advise Employer on restrictions on the use of certain radiation technology) was typed on the same word processing equipment that Complainant had used to type his complaint to DOL, but declined to find that Employer had established that the memorandum was not authentic. Although the ARB's disposition of the complaint rendered it unnecessary to resolve the authenticity of the memorandum, the ARB made a point of stating that it questioned the ALJ's conclusion that Employer failed to establish that the memorandum was not authentic. Accordingly, the ARB observed that "...the fabrication of evidence in administrative proceedings is a very serious matter. Not only does the United States Code provide for prosecution of such an offense, 18 U.S.C. § 1505 (1994), but also the ALJ is empowered to exclude parties from proceedings on the basis of unethical conduct. 29 C.F.R. § 18.36(b) (1995); cf. Sheridan v. E.I. Dupont de Nemours & Co. , 100 F.3d 1061, 1069 (3d Cir. 1996)(noting principle that a party's fabrication of evidence is indicative that his case is weak or unfounded)."

[N/E Digest IX M 2]
UNETHICAL CONDUCT; OBLIGATION OF ALJ TO RESOLVE UNCERTAINTIES SURROUNDING QUESTIONABLE CONDUCT

In Webb v. Carolina Power & Light Co. , 93-ERA-42 (ARB Aug. 26, 1997), the ARB pointed out a number of suspicious discrepancies between a handwritten and signed statement about Complainant's performance by Complainant's former supervisor, and a typed version supplied by Respondent to the DOL investigator. The ARB found that these discrepancies were "highly probative of an effort to cover up unlawful motivation on [the former supervisor's] part." Slip op. at 9. The ARB criticized the ALJ for not pursuing the issue, writing that "[w]here the integrity of the Department's adjudicative processes are at stake, the presiding Administrative Law Judge should take all appropriate steps to resolve the uncertainty surrounding questionable conduct." Id. The ARB also wrote that

If [Respondent's] counsel knowingly allowed the altered version to be submitted to the Department of Labor assuming that it would be accepted as a typed version of the handwritten statement, that would be a serious violation of the standards of conduct for practice before the administrative tribunals of the Department. See 29 C.F.R. § 18.36(a): "All persons appearing in proceedings before an administrative law judge are expected to act with integrity, and in an ethical manner."

Id.

[N/E Digest IX M 2]
DISQUALIFICATION OF COUNSEL; COUNSEL POTENTIAL WITNESS ON ATERIAL AND IMPORTANT ISSUE

In Berkman v. U.S. Coast Guard Academy , 97-CAA-2 and 9 (ALJ Apr. 9, 1997), the ALJ granted Complainant's motion to disqualify Respondent's counsel, where it was clear that Complainant intended to call Respondent's counsel as a witness and that the expected interrogation would be material and important to the case. The ALJ took into consideration that the motion to disqualify had come early in the proceedings and that only limited discovery had been done.

[N/E Digest IX M 2]
ATTORNEY CONDUCT; ORDER BARRING FUTURE APPEARANCES

In Johnson v. Oak Ridge Operations Office , 95-CAA-20, 21 and 22 (ALJ Feb. 4, 1997), the presiding ALJ ordered Complainant's attorney permanently barred from appearing before her in this or any other matter. This order was preceded by an order to show cause issued pursuant to 29 C.F.R. §§ 18.29, 18.34 and 18.38, and was based on the ALJ's finding of "a continuing pattern of willful misconduct, including the making of prohibited ex parte communications, engaging in disruptive actions, violating [the ALJ's] orders, and failing to abide by [the OALJ's] rules of practice."

[N/E Digest IX M 2]
ATTORNEY'S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT; ATTORNEY DISCIPLINARY PROCEEDING

In Rex v. Ebasco Services, Inc. , 87-ERA-6 and 40 (ARB Jan. 7, 1997), the Board held that attorney's fees are not available under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (1988), for the defense of an attorney disciplinary proceeding under 29 C.F.R. § 18.34(g)(3), arising out of alleged improper conduct by the attorneys for the Complainant in an ERA whistleblower case.

ATTORNEY CONDUCT; BOUNDARY BETWEEN ZEALOUS AND OVER ZEALOUS ADVOCACY
[N/E Digest IX M 2]

In Seater v. Southern California Edison Co . , 95-ERA-13 (ARB Sept. 27, 1996), Complainant argued that he was denied a fair hearing because of the ALJ's alleged bias. The Board rejected Complainant's contention, and concluded with the following advice:

...[T]he ALJ's role in maintaining order and decorum in the courtroom may become an onerous task in some instances. . . . We recognize that the difficulties of distinguishing between the actions of a zealous advocate and those of an overzealous opponent, while attempting to ensure the efficient use of Federal resources in the adjudication of cases before him, may substantially increase the burden on the ALJ. We therefore caution counsel for both parties that denigrating statements regarding opposing counsel and overtly hostile exchanges . . . . , as well as introduction of extraneous issues [ e.g. ] (comment "for the record," that certain exhibits had been provided to Congressional investigators) serve only to cloud the issues at hand and to delay the completion of the adjudication of this case by the Department of Labor. 6 /

______

6 / These principles are equally applicable to proceedings before this Board. The parties should also be mindful that reliance on inaccurate factual statements in briefs and motions does not enhance the persuasive value of the party's corresponding contention; it merely delays the decisional process. ...

Slip op. at 3-4 and n.6 (citations omitted).

ATTORNEY MISCONDUCT; IMPROPRIETY OF INTERRUPTION OF TESTIMONY
[N/E Digest IX M 2]

In Frady v. Tennessee Valley Authority , 92-ERA- 19 and 34 (Sec'y Oct. 23, 1995), the Secretary noted, with apparent disapproval, the conduct of counsel in interrupting testimony to interject their own testimony. Citing 29 C.F.R. § 18.36 (standards of conduct) and § 18.37 (hearing room conduct).

[Nuclear & Environmental Digest IX M 3]
FEDERAL RULES OF EVIDENCE ARE NOT TO BE APPLIED IN PART 24 WHISTLEBLOWER PROCEEDINGS

In Melendez v. Exxon Chemicals Americas , ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000), one member of the ARB held that the ALJ's application of the Federal Rules of Evidence to a proceeding under the nuclear and environmental whistleblower regulations at 29 C.F.R. Part 24 was in error, noting that section 24.6(3)(1) of those rules prohibit the application of formal rules of evidence in such adjudications.

[Nuclear and Environmental Digest IX.M.3.]
RELATIONSHIP BETWEEN PART 18 AND PART 24

In Khandelwal v. Southern California Edison , ARB No. 98-159, ALJ Nos. 1997-ERA-6 (ARB Nov. 30, 2000), the ARB implied that if an ALJ compresses a discovery period in order to proceed with the hearing on an expedited basis, it may also be necessary for the ALJ to set out the time to be allocated between requests and responses, and set out a deadline for filing of motions to compel, protective orders, or other discovery conflicts. This is necessary because the Part 18 time frames may not be realistic under a compressed discovery schedule. The ARB noted that although the Part 18 rules are generally applicable to Part 24 hearings, they must yield when inconsistent with Part 24 or relevant statutory authority or executive order.

IX. N. EXPERT WITNESSES

[N/E Digest IX N]
EXPERT WITNESS; APPOINTMENT AS

In Odom v. Anchor Lithkemko , 96-WPC-1 (ARB Oct. 10, 1997), the ALJ improperly credited a witness as a disinterested expert witness where that person was called as a fact witness rather than an expert witness, was not appointed as an expert as provided at 29 C.F.R. § 18.706, and was appointed without the witness' consent and without proper opportunity for the parties to participate. The error, however, was harmless where it was unnecessary to rely on the witness' responses to hypotheticals to determine the issues involved in the instant case.

[N/E Digest IX N]
EXPERT WITNESS; QUALIFICATION AS AN EXPERT DOES NOT MANDATE THAT ALJ CREDIT THAT EXPERT'S TESTIMONY

In Odom v. Anchor Lithkemko , 96-WPC-1 (ARB Oct. 10, 1997), the ARB found that the ALJ properly credited the testimony of a lay witness who had considerable experience and direct involvement in an underground storage tank project, over that of Complainant, who had been qualified as an expert witness on the subject of underground storage tanks. The ARB observed that the issue was one of witness credibility. Even though Complainant was qualified as an expert, the ARB found it is clear from the transcript that his knowledge of the subject project was limited.