USDOL/OALJ STAA Whistleblower Digest
DIVISION IX -- DAMAGES AND REMEDIES
SUBDIVISION F -- ENFORCEMENT

[Last updated December 23, 2011]

IX. Damages and remedies

F. Enforcement

[STAA Digest IX F]
AUTHORITY TO SEEK ENFORCEMENT OF AWARD OF DAMAGES, FEES AND COSTS LIES WITH THE SECRETARY (OR ASSISTANT SECRETARY FOR OSHA) RATHER THAN WITH THE ARB

In Minne v. Star Air, Inc. , ARB Nos. 09-066, 09-082, ALJ No. 2004-STA-26 (ARB Dec. 19, 2011), the ARB affirmed the ALJ's decision on remand finding that the Complainants had been discharged in violation of the STAA when they refused to drive commercial motor vehicles loaded with ammunition to gun shows where the vehicles were in violation of vehicle safety regulations. The ARB also affirmed the ALJ's unopposed award of back pay and interest totaling $181,468.28 for one Complainant and $341,894.64 for the other Complainant, and the ALJ's unopposed award of $79,004.75 for attorney's fees and costs.

The Complainants requested that the ARB issue an order to show cause directing the Respondent's owner to show cause why he should not be found personally liable for the back pay, attorney's fees, and costs. The Complainant submitted the document containing this request after the ALJ had closed the record and issued his ruling on damages, fees and costs. The ARB denied the motion, observing that it only had the authority to issue an order affirming the ALJ's provision of remedies. Authority to enforce the ARB's order rests instead with the Secretary or the Assistant Secretary for OSHA.

[STAA Digest IX F]
ENFORCMENT OF ARB ORDER ON REINSTATEMENT AND BACK PAY

In U.S. Dept. of Labor v. Dalton v. Copart , No. 07-CV-77-TCK-FHM (N.D. Okla Sept. 13, 2010)(case below 1999-STA-46), the U.S. Department of Labor brought this action against the defendant, the former employer, pursuant to 49 U.S.C. § 31105 seeking enforcement of a Final Decision and Order issued by the Administrative Review Board. DOL sought summary judgment requiring the defendant to pay the intervenor, a former employee, a set amount in back pay and interest pursuant to the FDO. All the parties agreed that the employer owed its former employee back pay and interest but disputed the precise amount. The question before the court was whether the employer's offer of reinstatement was sufficient to end the accrual of back pay liability and thus, whether an objective, reasonable person would have rejected the offer of reinstatement. The Court granted DOL's motion for summary judgment and ordered the employer to pay back pay at the amount requested by DOL.

[STAA Digest IX F]
ACTION TO ENFORCE FINAL ORDER OF THE ARB; DISCOVERY ON MITIGATION OF DAMAGES NOT RELEVANT

In USDOL v. Copart, Inc. , No. 07-cv-00077 (N.D.Okla. May 21, 2009) (case below ARB Nos. 04-027, 04-138, ALJ No. 1999-STA-46), the Secretary of Labor filed an action seeking enforcement of a Final Decision of the Administrative Review Board under the STAA whistleblower provision. Initially, a federal Magistrate Judge accepted assertions by counsel for the Defendant that it was necessary to conduct discovery into the question of the whistleblower's efforts to mitigate damages, and stayed the proceedings because the whistleblower had been involved in a serious automobile accident. The Department of Labor subsequently filed a motion for summary judgment, and the question of whether the stay should be continued was broached. Upon review of the motion, the record, and legal research, the Magistrate determined that the Defendant would be required to respond to the motion for summary judgment without taking the deposition of the whistleblower. The Magistrate found that he did not have the authority to revisit the merits of the ARB order, that the time frame encompassing the back pay aspect of the ARB's order ended nearly a year before the ARB order was entered, and that it did not appear that discovery on mitigation of damages would be necessary for the Defendant to respond to the motion for summary judgment � nor was it relevant to any issue before the court.