DOL’s ARB announces two new members and new briefing policy

The U.S. Department of Labor’s Administrative Review Board (ARB) has issued a letter announcing the appointment of two new judges, and a new policy on briefing schedules. The two new judges are Joanne Royce and Luis Corchado. Royce previously worked for the Government Accountability Project (GAP) and a House committee. Corchado was Assistant Director of the Litigation Section for the City and County of Denver, Colorado. Previously, he was with Davis, Graham & Stubbs, a corporate law firm. The ARB now consists of four judges appointed by Secretary of Labor Hilda Solis (Chair Paul Igasaki, vice Chair E. Cooper Brown, Royce and Corchado) and one judge retained from the prior administration (Wayne Beyer).

The new ARB will have its work cut out for it if it is committed to restoring whistleblower law to the remedial purpose of providing protection to encourage employees to come forward. It also has a task of reducing the backlog that can keep cases pending for up to four years. During the stakeholders meeting in June, the Board announced a goal of reducing the backlog so that cases would not pend for longer than two years. The appointment of new judges should help in that goal. It has been years since the ARB was fully staffed. At the June stakeholders meeting, the ARB also floated the idea of restricting extensions of time to cases where a party shows “exceptional circumstances.” This would be a departure from the past practice of allowing almost all requests for extensions of time. Even with a backlog of two years, it is hard to see how extension of a month or two will delay the ARB in getting to and deciding the present case. Lawyers for whistleblowers and respondents urged the ARB in June to allow extensions for “good cause” to encourage attorneys to provide representation in whistleblower matters. Stephen M. Kohn, Executive Director of the National Whistleblowers Center (NWC), emphasized the difficulty of meeting deadlines as short as 30 days, and urged the ARB to maintain the current practice. Such pleas were to no avail. The ARB’s letter announces that effective October 1, 2010, “extensions of time … will only be granted upon a showing of exceptional circumstances.” Time will tell how severe such circumstances must be to qualify as “exceptional” in the eyes of this new ARB. To add to the difficulty lawyers will have in whistleblower cases, the ARB will also require them to file not only their briefs, but also an “appendix” with copies of all the parts of the record cited in the brief. The appendix practice adds to the expense and difficulty of federal court appeals, and now the ARB wants to move in that same direction. The advantage for the ARB is that they will not have to wait for, or wade through, the record sent by the Administrative Law Judge (ALJ). Yet the ARB will still require the ALJ to forward the entire official record of the case. Startin with ALJ decisions issued on or after October 1, 2010, the new rules will require that parties be informed that their initial brief and appendix will be due within 30 days of filing their petition for review. While these new rules will make it more difficult for whistleblower lawyers to present cases to the ARB, and make it more difficult for whistleblowers to get attorneys, hopefully the content of decisions from the new ARB will improve the status of the remedial purpose of whistleblower protection laws and make such cases worth pursuing.

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