My client, Doug Evans, just won a remand from the Department of Labor's Administrative Review Board (ARB). In a rare en banc decision, all five ARB judges joined in holding that Iqbal and Twombly do not apply to OSHA whistleblower complaints. Thus, the ARB's 2010 decision in Evans' case is finally overruled. The ARB also made clear that Evans' decision to initiate the OSHA process is itself protected, and his employer cannot retaliate against him for having commenced his original whistleblower complaint.
Douglas Evans (left in photo, with me) was an employee of the U.S. Environmental Protection Agency (EPA) in Las Vegas, Nevada, for 17 years. He was a technician who repaired equipment. EPA managers in Las Vegas were under pressure to get a high rate of their employees to “volunteer” for emergency response work. Evans recalls getting an order to participate. He wrote a letter to the EPA Administrator, and his supervisors never forgave him for it. Evans' letter complained about the lack of training for the emergency response work, and about other aspects of the plan. I recognized that a concern about lack of training for emergency response work is an environmental concern. I filed Evans' complaint with OSHA under the federal environmental laws. Shortly thereafter, Evans' bosses fired him on trumped up charges. I filed a supplemental complaint against the discharge. OSHA dismissed. I requested a hearing before an Administrative Law Judge (ALJ). I asked for discovery from EPA. EPA made a motion to dismiss, and to stay discovery while its motion is pending. I opposed the motion to dismiss, citing the DOL's rule that there is “no particular form of complaint.” I also provided statements from Evans' co-workers supporting his complaint, and explained how the discharge in retaliation for his first OSHA complaint is certainly protected. Still, the ALJ dismissed the case, and in 2010 the ARB has affirmed. Evans petitioned for review to the U.S. Court of Appeals for the Ninth Circuit. During that review, the ARB issued its landmark decision in Sylvester v. Parexel International, ARB Case No. 07-123 (ARB May 25, 2011), Evans had submitted an amicus brief in the Sylvester case, explaining how the Iqbal standard had been so harmful to his whistleblower case. The Solicitor of Labor agreed that Evans' case should be returned to the ARB for reconsideration, and the Ninth Circuit agreed. Back at the ARB, the Solicitor of Labor filed a brief in support of Evans. Now we finally have the ARB's reconsideration.
Judge Brown's dissent makes some important points for whistleblowers and practitioners who face motions to dismiss before an Administrative Law Judge (ALJ). He notes that the majority's discussion of how ALJ's can handle motions to dismiss is "but dicta." Page 19. He finds that the majority "cites neither statutory nor regulatory authority prescribe new procedures by which ALJs are now to resolve motions seeking dismissal of whistleblower retaliation complaints for failure to state a claim for relief." Page 20. Thus, whistleblowers and their lawyers can cite to this concurring and dissenting opinion in response to any motion to dismiss, and preserve an issue for which the Department of Labor will be poorly equipped to refute on further review.
Judge Corchado explains what he will be looking for in reviewing complaints. To allege protected activity, he wants Evans to allege "facts about what activities his co-workers might be expected to do and why Evans believed that such acts would violate one or more of the environmental laws." Page 18. "Not much is required," he adds on page 19. It is a lesson about the importance of making clear exactly what is the whistleblower's protected activity.
The case is Evans v. United States Environmental Protection Agency, ARB No. 08-059, ALJ No. 2008-CAA-3 (ARB July 31, 2012), Decision and Order of Remand.