Wednesday, July 8, 2015

ALJs have new rules for whistleblower cases

On May 19, 2015, the Department of Labor’s Office of Administrative Law Judges (OALJ) issued its final regulations updating its rules for the first time since 1983. The new rules make a number of significant changes, but also fail to make certain changes that would truly modernize OALJ practice.
As these rules apply to hearings under 22 federal whistleblower laws, I review them here.
Most notably, the rules fail to provide for electronic filing. I was one of the commenters who had suggested that OALJ’s new rules should provide for electronic filing. The Office states that, “implementation of ECF is a resource constrained policy decision.” In other words, the Department of Labor has not paid for an electronic filing system yet, so OALJ does not have one and cannot make one with its existing resources. It remains hard to believe that the resources expended on handling paper files is really cheaper than implementing an electronic system. EEOC has a partially implemented “HE-CAPS” system through which counsel can file documents by email. MSPB and NLRB have their own electronic web-based filing systems. Federal courts have a well-developed Case Management/Electronic Case Filing system. Still, OALJ cannot use any of these, or develop its own. The proposed regulation at 29 CFR § 18.30(b)(4) accommodates “special circumstances” by allowing a judge to let “papers [] be filed, signed, or verified by electronic means.” Hopefully, ALJs will routinely allow email submissions to meet time limits, but it has not happened yet. They still want documents filed by hardcopy.
For electronically stored information (ESI), the new rules permit a requesting party to specify a format for producing the information. 29 CFR § 18.61(b)(iii). If no format is specified, then the producing party can provide them “in a reasonably usable form or forms[.]” 29 CFR § 18.61(b)(v)(B). However, “A party need not produce the same electronically stored information in more than one form.” 29 CFR § 18.61(b)(v)(C). The effect is to give requesters an incentive to specify the format they want, or risk having their opponent pick a less desirable format. The rules do not specifically require parties to meet and confer about mutually agreeable formats. We had specifically cited to OALJ the case of Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 U.S. Dist. LEXIS 16355 (S.D.N.Y.), holding that “Production of materials in hard copy form does not preclude a party from receiving the same information in electronic form.” The OALJ does not address this case or explain why a party should be able to frustrate an opponent by producing information in a less searchable format.
We also asked OALJ to state that the rules should be applied to accomplish the remedial purposes of the laws OALJ enforces. Since we submitted our comments in 2013, the Supreme Court rooted its Lawson decision on the remedial purpose of SOX. Lawson v. FMR LLC, 134 S. Ct. 1158 (2014). The remedial purpose of the law was also the basis for upholding Obamacare subsidies this year. It is unfortunate that OALJ could not bring itself to say that the laws they enforce are remedial and their job is to accomplish the purposes of these laws.
We had asked OALJ to make explicit that summary decisions should be disfavored in whistleblower cases and cited a series of law review articles. One noted that, “[T]he increased inappropriate use of summary judgment” has “silently curtail[ed] workers’ civil rights claims[.]” Ann C. McGinley, Credulous Courts and the Tortured Trilogy: The Improper Use of Summary Judgment in Title VII and ADEA Cases, 34 B.C. L. Rev. 203, 205–06 (1993). OALJ responds that it “is neutral on the question of whether summary decision as a procedural mechanism is disproportionately adverse to the interests of whistleblower complainants.” It adds that the ARB has given more specific direction about summary judgment in whistleblower cases, including one of our cases, Evans v. E.P.A.
I had also suggested to OALJ that they adopt the Initial Discovery Protocols For Employment CasesAlleging Adverse Action currently being implemented in federal district courts around the country. See, generally, Pilot Project Regarding Initial Discovery Protocols For Employment Cases Alleging Adverse Action, Federal Judicial Center (November 2011)
OALJ responded that, “To the extent such initiatives may be beneficial in certain cases, the Department has concluded that the determination to adopt such procedures is best left to the discretion of individual judges and/or discovery plans developed by parties pursuant to paragraph (b)(3).”
OALJ also declined our strong suggestion that they define a day as a whole day. Weobjected to the proposed definition of “last day” at 29 CFR 18.32(a)(2). This proposed rule states, “Unless a different time is set by a statute, regulation, executive order, or judge’s order, the ‘last day’ ends at 4:30 p.m. local time where the event is to occur.” I pointed out how this rule would frustrate counsel who are used to getting briefs done before midnight deadlines. OALJ responds that since they are not generally authorizing electronic filing, filers need to send documents in time to arrive on the last day. This policy adds unnecessary expenses and risks to the cause of deciding cases on the merits.
OALJ did accept one of our comments: they have now deleted from 29 CFR § 18.24 any general deadline for filing amicus briefs. Judges may decide on the filing of amicus briefs on a case-by-case basis. This opens one door for public interest groups to urge consideration of the remedial purposes of the law.
Overall, this blog post gives whistleblower advocates a “heads up” about the new rules, and links to important sources of information about issues and substantive law that might be useful to consider in handling whistleblower cases at the OALJ.
By Richard Renner

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