ARB conducts stakeholders’ meeting on proposed rules

The Department of Labor’s Administrative Review Board (ARB) held a public meeting today to hear from stakeholders about the how it might craft rules of practice. Last Friday, the ARB released a preliminary draft of its proposed Rules of Practice and Procedure. All three ARB members attended to hear comments. Pictured here are Vice-Chair E. Cooper Brown, Chair Paul M. Igasaki, and Member Wayne C. Beyer. The National Whistleblowers Center (NWC) sent Executive Director Stephen M. Kohn, General Counsel David Colapinto, and myself, Legal Director Richard Renner. Three labor union attorneys attended. Five other complainant-side attorneys and four employer-side attorneys also attended. ARB Chair Igasaki explained that his experience at the Equal Employment Opportunity Commission (EEOC) taught him the wisdom of hearing from stakeholders before adopting rules. He and Vice-Chair Brown explained that the ARB wants to work down its backlog. Initially, the ARB hopes to decide this year all its cases that have been pending over two years. The ARB plans to announce the appointment of two new members soon, and plans to hire more staff attorneys. The ARB continues to invite written comments from stakeholders and members of the public, and asks that they be submitted by June 30, 2010. “The more input we have, the better off we are,” Mr. Igasaki said.

Mr. Brown said that about 80% of the ARB’s case load consists of whistleblower cases. It currently has a backlog of about 160 cases. About 155 new cases are filed each year, and the ARB expects that number to increase.

Stephen Kohn said that in 1984, he testified about the need for the Department to have rules of appellate procedure and he is glad to see movement on that goal. A lively discussion followed about how quickly counsel could complete briefing in whistleblower cases with a consensus urging the board to allow more time, and continue the current leniency on extension of time. Concerns were also raised about the propose standard of review, and rushing to avoid the time limits in which complainants could go to U.S. District Court.

Mr. Kohn explained how traditionally, DOL judges were happy to facilitate complainants who wanted to bring their cases in other forums without interference from DOL proceedings. They would gladly dismiss cases without prejudice to allow complainants to go elsewhere.

To speed up case processing, the preliminary draft of the rules proposes that complainants file their briefs at the same time as their petition for review (unless the petition for review is due in a time that is less than 30 days from the ALJ decision, in which case complainant will have 30 days from the petition for review to file a brief). Also, the ARB proposed requiring an appendix of relevant parts of the record. This will allow ARB staff to start reviewing the record without waiting for it to arrive from the ALJ. I suggested that the speedy briefing and appendix be optional. If a complainant wants to go fast, then that complainant can file an early brief and appendix. However, I urged the Board members to decide cases on the merits, even if that takes longer because a party is not able to write briefs so quickly or file an appendix. The ARB’s General Counsel, Janet Dunlap, said that over half of the ARB’s cases have a party appearing without a lawyer’s representation. Mr. Brown noted that the proposed rules have a second chance provision for pro se litigants in which if the Board rejects a filing, they can have 10 days to file it correctly. Also, if a litigant discovers that an issue was not included in the petition for review, they can move to amend that petition. Perhaps a brief could be deemed to be an amended petition for review. Mr. Kohn said that the Federal Rules of Appellate Procedure (FRAP) call for a process that is about as fast as experienced counsel can go, and the ARB should not require a schedule that is any faster. It would be contrary to the remedial goal of the whistleblower statutes. Mr. Paul Frieden of the Solicitor of Labor’s office urged the Board to be more receptive to extensions of time. If his office needed say 30 days, and the ARB allowed only ten, that would be “extremely difficult” for his office. Mr. Colapinto explained how most ARB cases focus on the mixed question of an employer’s true motives. This is a complex issue that cannot be rushed.

Attenders agreed that the ARB should consider alternative dispute resolution (ADR). Mr. Igasaki expressed that he was interested in this possibility. Perhaps the Board will consider requiring parties to participate in a mediation, at least to allow a trained mediator to assess if their is a reasonable prospect of settling a case. This service is presently available through the Office of Administrative Law Judges (OALJ) Settlement Judge Program.

I also urged the Board to reconsider its proposal for a limited scope of review of factual findings. Issuing regulations would tie the Board’s hands as it would then be legally compelled to follow its own rules. I suggested that the ARB could use a “substantial evidence” test in most cases, but still reserve its right to conduct a de novo review in cases where it finds that such review would better accomplish the purposes of the employee protections. Mr. Kohn agreed that de novo review was more appropriate when reviewing the mixed question of an employer’s true motives. He also suggested that an appendix be allowed as an option when a party can select the key items of evidence that will really make a difference in a case.