U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

SHANNON FAGAN,

COMPLAINANT

ARB CASE NO. 2023-0006

ALJ CASE NO. 2021-CER-00001

DATE: April 6, 2023

DEPARTMENT OF THE NAVY,

RESPONDENT.

Appearances:

For the Complainant:

Paula Dinerstein, Esq., Peter Jenkins, Esq., Colleen E. Teubner, Esq.,

and Hudson B. Kingston, Esq.; Public Employees for Environmental

Responsibility; Silver Spring, Maryland

For the Respondent:

Rachel J. Goldstein, Esq., Julie Ruggieri, Esq., and Alana M. Sitterly,

Esq.; Naval Litigation Office, Office of General Counsel; Washington,

District of Columbia

Before HARTHILL, Chief Administrative Appeals Judge, PUST and

BURRELL, Administrative Appeals Judges

ORDER GRANTING INTERLOCUTORY REVIEW

PUST, Administrative Appeals Judge:

This case arises under the Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA),1 the Safe Drinking Water Act (SDWA),2

and their implementing regulations.3 In response to motions filed by Shannon

Fagan (Complainant) to subpoena witnesses to testify at depositions and at

hearing,4 the Administrative Law Judge (ALJ) concluded that he lacked legal

authority to issue subpoenas under CERCLA or SDWA and so denied

Complainant’s motions.5 At Complainant’s request and pursuant to 28 U.S.C. §

1292(b),6 the ALJ certified for interlocutory review the question of “ALJ subpoena

authority in whistleblower and other proceedings with trial-type hearings, but no

express statutory authorization.”7 Complainant timely filed a petition for

interlocutory review with the Administrative Review Board (Board).8 For the

following reasons, we grant Complainant’s petition for interlocutory review.

42 U.S.C. § 9610.

Id. § 300j-9(i).

29 C.F.R. Part 24 (2022). In addition, the ALJ noted that it is disputed whether the

Solid Waste Disposal Act and/or the Clean Air Act are at issue. Order Denying

Respondent’s Motion for Summary Decision at 1 (Sept. 14, 2022).

Order Denying Complainant’s Motion for Subpoenas for Attendance at Hearing at 1

(Oct. 7, 2022); Order Denying Complainant Motion to Compel Deposition of Susan Hulbert

and Quashing Subpoenas at 1-2 (June 3, 2022).

Order Denying Complainant’s Motion for Subpoenas for Attendance at Hearing at 25 (Oct. 7, 2022); Order Denying Complainant Motion to Compel Deposition of Susan

Hulbert and Quashing Subpoenas at 3 (June 3, 2022).

Order Granting Motion to Certify Interlocutory Appeal and Stay Proceedings at 1-2

(Oct. 19, 2022).

Id. at 5. While the ALJ certified the interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b), the ALJ also found that there is no appeal right under the collateral order

doctrine because the denial of trial subpoenas is reviewable after a final judgment. Id. at 6.

As this matter was certified for interlocutory review, we will only analyze 28 U.S.C.

§ 1292(b) and do not reach the collateral order doctrine. Cf. Mara v. Sempra Energy

Trading, LLC, ARB No. 2012-0021, ALJ No. 2009-SOX-00018, slip op. at 4-6 (ARB Jan. 31,

2012) (analyzing questions the ALJ certified for interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b) and additional questions that the ALJ had not certified pursuant to the collateral

order doctrine).

Complainant’s Petition for Interlocutory Review (Oct. 30, 2022).

BACKGROUND

Complainant worked as an attorney for the United States Department of the

Navy (Respondent).9 Complainant contends she engaged in protected activity on

multiple occasions from October 5, 2017, to June 11, 2018.10 On June 15, 2018,

Respondent terminated Complainant’s employment, citing unprofessional conduct

as the reason in her notice of termination.11

Complainant filed a complaint with the Occupational Safety and Health

Administration (OSHA), alleging that her employment was terminated in

retaliation for her having made several protected disclosures.12 Once OSHA

determined that Respondent had retaliated against Complainant in violation of

CERCLA and SDWA,13 Respondent filed objections with the U.S. Department of

Labor’s Office of Administrative Law Judges (OALJ) and requested a hearing.

The parties entered into a Joint Discovery Plan that provided for the taking

of depositions by June 3, 2022.14 Complainant timely issued four deposition notices

to Respondent for four individuals with whom she had worked (hereinafter, “four coworkers”). On May 2, 2022, Respondent informed Complainant that the four coworkers were no longer employed by Respondent and so would not be produced for

deposition.15

Respondent’s Motion for Summary Decision at 4, Ex. B (Form SF-52), Ex. E

(Deposition of Shannon Fagan, Volume I) at 29 (June 15, 2022).

Agency’s Opposition to Complainant’s Motion to Compel Discovery Responses, Ex. 5

(Complainant’s Responses to Navy’s First Set of Discovery Requests, Interrogatory No. 6) at

4-8 (May 23, 2022).

Respondent’s Motion for Summary Decision at 5, Ex. A (Notice of Termination

During Trial Period), Ex. F (Deposition of Shannon Fagan, Volume II) at 39 (June 15,

2022).

Complainant’s Opposition to Motion for Summary Decision, Ex. 1 (OSHA

Complaint) (June 29, 2022).

Notice of Docketing at 1 (Aug. 25, 2021).

The record indicates that the Joint Discovery Plan called for depositions to be

conducted “during the weeks of May 23 and 30, 2022.” See Order Denying Complainant

Motion to Compel Deposition of Susan Hulbert and Quashing Subpoenas at 1 (June 3,

2022).

Id. at 2.

Relying on Respondent’s assertion that it intended to call Complainant’s

former supervisor, Susan Hulbert (Hulbert) at hearing, Complainant initially

determined that a deposition of Hulbert was unnecessary.16 Following review of

Respondent’s written discovery responses submitted on May 13, 2022, Complainant

served a notice of deposition on Hulbert, scheduling the deposition for June 6,

2022.17 Faced with Respondent’s opposition, Complainant sought to compel

Hulbert’s deposition by motion filed on June 1, 2022.18

Also on June 1, 2022, Complainant requested subpoenas directed to the four

co-workers on the grounds that they were former and not current employees of

Respondent and so required direct service. As a matter of course and without

consultation with the ALJ, the subpoenas were administratively issued by OALJ.19

The ALJ held a telephone hearing on Complainant’s motion to compel

Hulbert’s deposition on June 3, 2022. Respondent opposed the issuance of the

subpoenas for the four co-workers and for Hulbert.20 In an order dated June 3, 2022,

the ALJ denied the motion to depose Hulbert as untimely, finding no good cause to

extend the deposition deadline agreed to by the parties.21 The ALJ also quashed the

subpoenas issued to the four co-workers based on his finding that he lacked

authority to issue subpoenas under CERCLA or SDWA.22

On September 14, 2022, Complainant filed a motion to subpoena hearing

testimony for certain third-party witnesses, including but not limited to those for

whom Complainant sought deposition subpoenas.23 On October 7, 2022, the ALJ

Id.

Id. at 1-2.

Complainant’s Motion for Assistance in Securing Attendance at Deposition or

Subpoena (June 1, 2022).

Order Denying Complainant Motion to Compel Deposition of Susan Hulbert and

Quashing Subpoenas at 2 (June 3, 2022).

Id. at 1-2.

Id. at 2.

Id. at 3.

Order Denying Complainant’s Motion for Subpoenas for Attendance at Hearing at 1

(Oct. 7, 2022).

again ruled that he did not have authority to issue subpoenas under CERCLA or

SDWA and denied Complainant’s motion.24

On October 11, 2022, Complainant moved for interlocutory review

certification of the relevant question.25 On October 19, 2022, the ALJ certified for

interlocutory appeal “the question of ALJ subpoena authority in whistleblower and

other proceedings with trial-type hearings, but no express statutory authorization”

pursuant to 28 U.S.C. § 1292(b), and stayed the proceedings below.26 On October 30,

2022, Complainant filed a petition for interlocutory review with the Board.27

JURISDICTION AND STANDARD OF REVIEW

The Board’s delegated authority includes the consideration and disposition of

interlocutory appeals “in exceptional circumstances, provided such review is not

prohibited by statute.”28 Interlocutory appeals are generally disfavored given the

strong policy against piecemeal appeals.29 When a party seeks interlocutory review

of an ALJ’s non-final order, the Board has elected to look to the interlocutory review

procedures used by federal courts.30

DISCUSSION

When determining whether to entertain an interlocutory appeal before the

ALJ’s entry of a final judgment, the Board looks to the procedures provided in 28

U.S.C. § 1292(b).31 Section 1292(b) interlocutory review rests on two required

actions:

Id. at 2-5.

Order Granting Motion to Certify Interlocutory Appeal and Stay Proceedings at 1

(Oct. 19, 2022).

Id. at 5-6.

Complainant’s Petition for Interlocutory Review (Oct. 30, 2022).

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020).

Gunther v. Deltek, Inc., ARB Nos. 2012-0097, -0099, ALJ No. 2010-SOX-00049, slip

op. at 2 (ARB Sept. 11, 2012) (collecting cases).

Powers v. Pinnacle Airlines, Inc., ARB No. 2005-0138, ALJ No. 2005-SOX-00065, slip

op. at 5-6 (ARB Oct. 31, 2005) (citations omitted).

Kim v. SK Hynix Memory Sols., ARB No. 2020-0020, ALJ No. 2019-SOX-00012, slip

op. at 3-4 (ARB Jan. 28, 2020) (citations omitted).

First, “the [trial level] court must certify that the

interlocutory order ‘involves a controlling question of law

as to which there is substantial ground for difference of

opinion and that an immediate appeal from the order may

materially advance the ultimate termination of the

litigation.’”. . . . Second, “[t]he [reviewing court] may then,

‘in its discretion, permit an appeal to be taken from such

order.’”[32]

1. Question Properly Certified

Section 1292(b) permits a tribunal to certify an interlocutory order to an

appellate body for immediate review when: (1) the order involves a controlling

question of law; (2) there is a substantial ground for difference of opinion in

resolving the issues presented by the order; and (3) an immediate appeal may

materially advance the litigation’s ultimate termination.33 In a well-reasoned

opinion, the ALJ analyzed all three issues, finding all three to be established in the

present case. As such, the Board concludes that the ALJ’s certification order

sufficiently supports the Board’s consideration of whether—in its discretion—it

should permit the interlocutory appeal to proceed.

2. Interlocutory Appeal Granted

The Board’s analysis focuses on the same three issues addressed by the ALJ:

controlling issue of law; substantial difference of opinion; and advantage of

immediate appeal to resolve litigation. The ALJ’s analysis is not controlling of our

determination. Rather, “we must decide whether to exercise our ‘discretion,’ as a

prudential matter, to ‘permit an appeal to be taken from such order.’ 28 U.S.C.

§ 1292(b). Since ‘the [ALJ] has made an order, the three factors that justify

interlocutory appeal should be treated as guiding criteria rather than jurisdictional

requisites.”34 In effect, “[t]he three factors should be viewed together as the

Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 19 F.4th 472, 475-76 (D.C. Cir.

2021) (quoting Microsoft Corp. v. Baker, 582 U.S. 23, 29 (2017)).

28 U.S.C. § 1292(b); see also Kim, ARB No. 2020-0020, slip op. at 4.

In re Trump, 874 F.3d 948, 951 (6th Cir. 2017) (emphasis in original) (quoting 16

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3930

(3d ed. 2002)).

statutory language equivalent of a direction to consider the probable gains and

losses of immediate appeal.”35 The efficiency of both the eventual ALJ hearing and

the Board’s proceedings are to be considered by weighing the benefit to the OALJ of

avoiding unnecessary hearing against the inefficiency of having the Board hear

multiple appeals in the same case.36

A. Controlling Question of Law

To satisfy this prong, “[a] controlling question of law must be one of law—not

fact—and its resolution must ‘materially affect the outcome of litigation.’”37 Section

1292(b) appeals “were intended, and should be reserved, for situations in which the

[court] can rule on a pure, controlling question of law without having to delve

beyond the surface of the record in order to determine the facts.”38 The legal

question at issue “must be stated at a high enough level of abstraction to lift the

question out of the details of the evidence or facts of a particular case and give it

general relevance to other cases in the same area of law.”39

The first aspect of this inquiry is clearly met. Whether Department of Labor

ALJs have subpoena authority in “whistleblower and other proceedings with trialtype hearings, but no express statutory authorization,” is a pure question of law.

The answer to the inquiry is not dependent on an analysis of the facts of this or any

other specific case.

The second aspect is also met in that resolution of the legal issue could

materially affect the outcome of the litigation. As the ALJ opined, whether he may

compel witnesses to testify will affect which witnesses testify at the hearing, which

United Launch Servs., LLC v. United States, 139 Fed. Cl. 721, 723 (Fed. Cl. 2018)

(quoting 16 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3930 (3d

ed. Apr. 2017 Update)).

S.E.C. v. Credit Bancorp, Ltd., 103 F. Supp. 2d 223, 226-27 (S.D.N.Y. 2000).

ICTSI Or., Inc. v. Int’l Longshore & Warehouse Union, 22 F.4th 1125, 1130 (9th Cir.

2022) (quoting In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir.

1981)); accord Doe v. Mindgeek USA Inc., 574 F. Supp. 3d 760, 775 (C.D. Cal. 2021),

abrogated on other grounds by Does 1-6 v. Reddit, Inc., 51 F.4th 1137 (9th Cir. 2022) (citing

McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004); Ahrenholz v. Bd. of

Trs. of the Univ. of Ill., 219 F.3d 674, 675-77 (7th Cir. 2000)).

McFarlin, 381 F.3d at 1259 (citations omitted).

Id.

in turn could affect the development of the record and the outcome of the decision.40

The ALJ determined that if he were to find in favor of Respondent, his failure to

grant subpoenas “would likely be reversible error if an appellate body found” that

he had authority to issue subpoenas.41 Thus, we conclude that whether the ALJ

may issue subpoenas in the present matter is a controlling question of law.

B. Substantial Grounds for Difference of Opinion

Existing authority establishes that there are substantial grounds for

differences of opinion as to whether ALJs have subpoena authority in proceedings

brought under statutes which lack express statutory authorization for such but

have trial-type hearing procedures, including CERCLA and SDWA. In Childers v.

Carolina Power & Light Co, the Board found an implied authority to issue

subpoenas under the Energy Reorganization Act (ERA), a statute which also lacks

express ALJ subpoena authority but has trial-like hearing procedures.42 Both before

and after Childers, the courts in Bobreski v. U.S. E.P.A.43 and Immanuel v. U.S.

Dep’t of Lab.44 found no authority for ALJ-issued subpoenas under environmental

statutes which, like the ERA, lack such express authority. Both Immanuel and

Bobreski pre-date the Board’s reaffirmation of Childers in a case involving the

Immigration and Nationality Act (INA).45 Given these facts, this issue clearly

involves a question “over which reasonable judges might differ” and the

“uncertainty provides a credible basis for a difference of opinion.”46 Thus, we find

that there are substantial grounds for different opinions regarding the issue of

whether ALJs have subpoena authority in matters involving statutes with trial-like

Order Granting Motion to Certify Interlocutory Appeal and Stay Proceedings at 3

(Oct. 19, 2022).

Id.

Childers v. Carolina Power & Light Co., ARB No. 1997-0077, ALJ No. 1997-ERA00032, slip op. at 4-15 (ARB Dec. 29, 2000).

Bobreski v. U.S. E.P.A., 284 F. Supp. 2d 67, 76-77 (D.D.C. 2003).

Immanuel v. U.S. Dep’t of Lab., 139 F.3d 889 (4th Cir. 1998).

Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Integrated Informatics, Inc., ARB No.

2008-0127, ALJ No. 2007-LCA-00026, slip op. at 7 (ARB Jan. 31, 2011) (declining to

reexamine Childers in light of Immanuel, stating that “[b]ecause both the ERA and the INA

contain mandates that ALJs provide formal hearings in cases arising under those statutes,

we reject the ALJ’s decision to distinguish Childers on this basis.”).

Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011) (quoting In re

Cement Antitrust Litig., 673 F.2d at 1028 (Boochever, J., dissenting on other grounds)).

hearing procedures but lacking explicit statutory provisions, including CERCLA

and SDWA.

C. Materially Advances Litigation

An immediate appeal may materially advance the litigation’s ultimate

termination if “resolution of the question ‘may appreciably shorten the time, effort,

or expense of conducting’” the appellate proceedings.47 The question presented on

interlocutory appeal does not need to “have a final, dispositive effect on the

litigation.”48 A key factor to consider is “whether permitting an interlocutory appeal

would ‘minimiz[e] the total burdens of litigation on parties and the judicial system

by accelerating or at least simplifying trial court proceedings.’”49 Notably, an issue

may materially advance the litigation where it “would allow the parties to resolve a

controlling question, while providing guidance on an unsettled area of law.”50

The Board finds that granting this interlocutory appeal will materially

advance the litigation by preventing serial hearings and resulting appeals in this

case. More broadly, resolution of the certified question will promote uniformity by

reducing future conflicting decisions relying on Childers, which will in turn promote

efficient and equitable judicial administration.

While our jurisdiction in this matter flows from the ALJ’s Order Granting

Motion to Certify Interlocutory Appeal and Stay Proceedings as certified to the

Board, we are not tied to the particular question formulated by the ALJ but may

instead exercise our discretion to specify the question(s) we will consider.51 By

ICTSI Or., Inc. 22 F.4th at 1131 (quoting In re Cement Antitrust Litig., 673 F.2d at

1027).

Reese, 643 F.3d at 688.

Sateriale v. RJ Reynolds Tobacco Co., No. 2:09-cv-08394, 2015 WL 3767424, at *4

(C.D. Cal. June 17, 2015) (quoting Carrillo v. Schneider Logistics Trans–Loading &

Distrib., Inc., No. 2:11–cv–8557, 2014 WL 1155403, at *4 (C.D. Cal. Mar. 21, 2014)).

Middlesex Cnty. Ret. Sys. v. Semtech Corp., No. CV 07–7114, 2010 WL 11523599, at

*2 (C.D. Cal. May 17, 2010) (quoting Ovando v. City of Los Angeles, 92 F. Supp. 2d 1011,

1025 (C.D. Cal. 2000)) (citing Mohawk Indus., Inc., 130 S. Ct. at 607 (holding that “district

courts should not hesitate to certify an interlocutory appeal in such cases” when “a privilege

ruling involves a new legal question or is of special consequence”)).

See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996) (citing 9 J.

MOORE & B. WARD, MOORE’S FEDERAL PRACTICE ¶ 110.25[1], p. 300 (2d ed.1995) (“it is

the order that is appealable, and not the controlling question identified by the district

granting interlocutory review in this matter, we do not intend to consider whether

every federal whistleblower or other statute “with trial-type hearings” contains

statutory direction regarding the authority of an ALJ to issue subpoenas, an inquiry

that is far too vast in scope and lacking in connection to the ALJ’s order in this case.

Instead, we expect to focus on the issue of whether Childers and its progeny

mandate an outcome different than that ordered by the ALJ below.

CONCLUSION

Accordingly, we GRANT Complainant’s Petition for Interlocutory Review

and direct briefing on the issue identified above in accordance with the attached

Notice of Appeal Acceptance, Electronic Filing Requirements, and Briefing

Schedule.

Given the identification and importance of the issue accepted for review, we

invite briefing by amicus curiae as set forth in the attached Order Allowing

Filing of Amicus Curiae Briefs.

SO ORDERED.

__________________________________________

TAMMY L. PUST

Administrative Appeals Judge

__________________________________________

SUSAN HARTHILL

Chief Administrative Appeals Judge

__________________________________________

THOMAS H. BURRELL

Administrative Appeals Judge

court.” (emphasis original)); 16 C. WRIGHT, A. MILLER, E. COOPER, & E. GRESSMAN,

FEDERAL PRACTICE AND PROCEDURE § 3929, pp. 144–145 (1977) (“[T]he court of appeals

may review the entire order, either to consider a question different than the one certified as

controlling or to decide the case despite the lack of any identified controlling question.”).

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

SHANNON FAGAN,

COMPLAINANT

ARB CASE NO. 2023-0006

ALJ CASE NO. 2021-CER-00001

DATE: April 6, 2023

DEPARTMENT OF THE NAVY,

RESPONDENT.

Appearances:

For the Complainant:

Paula Dinerstein, Esq., Peter Jenkins, Esq., Colleen E. Teubner, Esq.,

and Hudson B. Kingston, Esq.; Public Employees for Environmental

Responsibility; Silver Spring, Maryland

For the Respondent:

Rachel J. Goldstein, Esq., Julie Ruggieri, Esq., and Alana M. Sitterly,

Esq.; Naval Litigation Office, Office of General Counsel; Washington,

District of Columbia

Before HARTHILL, Chief Administrative Appeals Judge, PUST and

BURRELL, Administrative Appeals Judges

NOTICE OF APPEAL ACCEPTANCE,

ELECTRONIC FILING REQUIREMENTS, AND

BRIEFING SCHEDULE

PLEASE TAKE NOTICE that, pursuant to the Administrative Review

Board’s (Board) Order Granting Interlocutory Review, the Board hereby issues this

Notice of Appeal Acceptance, Electronic Filing Requirements, and Briefing

Schedule.

ACCEPTANCE OF APPEAL. The Board has accepted this matter for review

and assigned it the case number noted above. All future filings related to this

matter must include this case name and ARB Case Number. All filers are

required to comply with the Board’s rules of practice and procedure found in

29 C.F.R. Part 26, which can be accessed at https://www.ecfr.gov/current/title29/subtitle-A/part-26.

ELECTRONIC FILING AND SERVICE

Use of EFS System

The Board’s Electronic Filing and Service (EFS) system allows parties to

initiate appeals electronically, file briefs and motions electronically, receive

electronic service of Board issuances and documents filed by other parties,

and check the status of appeals via an Internet-accessible interface. Use of

the EFS system is free of charge to all users.

•

Attorneys and Lay Representatives: Use of the EFS system is

mandatory for all attorneys and lay representatives for all

filing and all service related to cases filed with the Board, absent an

exemption granted in advance for good cause shown pursuant to 29

C.F.R Part § 26.3(a)(1), (2).

•

Self-Represented Parties: Use of the EFS system is strongly

encouraged for all self-represented parties with respect to all

filings with the Board and service upon all other parties. Using the

EFS system provides the benefit of built-in service on all other

parties to the case. Without the use of EFS, a party is required to not

only file its documents with the Board but also to serve copies of all

filings on every other party. Using the EFS system saves litigants

the time and expense of the required service step in the process, as

the system completes all required service automatically. Upon a

party’s proper use of the EFS system, no duplicate paper or fax filings

are required.

Self-represented parties who choose not to use the EFS system

must file all pleadings, including briefs, appendices, motions, and

other supporting documentation, by mail or by personal or

commercial delivery directed to:

Administrative Review Board

Clerk of the Appellate Boards

U.S. Department of Labor

200 Constitution Avenue, N.W., Room S-5220

Washington, D.C., 20210

The filing party must also serve all other parties to the case by a

method of service authorized under applicable law or rule.

•

Non-Party Participants: Amici or other non-party participants in

a case filed before the Board, if represented by counsel or a lay

representative, are required to use the EFS system for all filing and

service.

EFS Registration and Duty to Designate E-mail Address for

Service

To use the EFS system, each party must register and designate a valid

e-mail address by filing an online registration form, available at

https://www.dol.gov/agencies/arb/arb_efile. After the Board has notified

the party that the provided e-mail address has been validated, the

party is allowed to electronically file and receive electronic service.

To use the Board’s EFS system, a user must have a validated user

account. To create a validated EFS user account, a user must register

and designate a valid e-mail address by going to https://efile.dol.gov,

select the button to “Create Account,” and proceed through the

registration process. If the user already has an account, they may

simply use the option to “Sign In.”

Information regarding registration for access to and use of the EFS

system, including for parties responding to a filed appeal, as well as a

step-by-step User Guide, answers to frequently asked questions

(FAQs), video tutorials and contact information for login.gov and EFS

support can be found under the “Support” tab at https://efile.dol.gov.

Effective Time of Filings

Any electronic filing transmitted to the Board through the EFS e-File

system or via an authorized designated e-Mail address by 11:59:59

Eastern Time shall be deemed to be filed on the date of transmission.

Service of Filings

•

Service on Registered EFS Users: Service upon registered EFS

users is accomplished automatically by the EFS system.

•

Service on Other Parties or Participants: Service upon a party

that is not a registered EFS user must be accomplished through any

other method of service authorized under applicable rule or law.

Proof of Service

Every party is required to prepare and file a certificate of service with

all filings. The certificate of service must identify what was served,

upon whom, and in what manner. Although electronic filing of any

document through the EFS system will constitute service of that

document on all EFS-registered parties, electronic filing of a certificate

of service through the EFS system is still required. Non EFSregistered parties must be served using other means

authorized by law or rule.

BRIEFING REQUIREMENTS

Briefing Schedule

•

Opening Brief: Within 28 calendar days of the date of this Order,

the Complainant must file with the Board a supporting legal brief of

points and authorities. The Opening Brief may not exceed 50 doublespaced pages.

•

Response Brief: Within 28 calendar days from the date of service

of the petitioner’s Opening Brief, the Respondent may file with the

Board a Response Brief in opposition to the Opening Brief. The

Response Brief may not exceed 50 double-spaced pages.

•

Reply Brief: Within 14 calendar days from the date of service of a

Response Brief, the Complainant may file with the Board a Reply

Brief. The Reply Brief may not exceed 20 double-spaced pages.

No additional briefs may be filed without the prior written permission

of the Board, issued by Order. Pursuant to the simultaneously issued

Order Allowing Filing of Amicus Curiae Briefs, any person or entity

who wishes to file an amicus curiae brief in this case is allowed to do

so, in accordance with that Order,

Motions and Responses

All motions and other requests for extraordinary action by the Board

including, but not limited to, requests for extensions of time or to

exceed page limitations, shall be in the form of a motion. Motions and

responses to motions may not exceed 30 double-spaced pages.

Appendix and Exhibit Filings

The Board already possesses the entire record. It is not allowed for any

party to file the entire record as an appendix or exhibit. Parties are

only permitted to file an appendix containing specific cited portions of

the record relied upon in a party’s accompanying filing.

Any filed appendix shall consist only of well-labeled excerpts from the

record that are directly cited in the brief, motion or other filing

accompanying the appendix. Parties may not include in an appendix

any evidence not already contained in the record, without prior written

permission granted by Board order.

Parties seeking to file new evidence must file a motion with the Board

with supporting argument. The Board retains the authority to reject

any appendix or exhibit filings that do not meet these requirements.

Page Limitations

The page limitations set forth in this Order do not include cover pages,

tables of contents, tables of citations, signature blocks, or certificates of

service. A motion to exceed an identified page limitation must specify

why additional pages are required. Such motions will not be granted

except in extraordinary circumstances.

If a brief or motion is filed without approval that exceeds the stated

page limitations, the Board may, with or without notice: (1) refuse to

accept the filing; (2) strike the filing with leave to refile a compliant

filing within a specified time; (3) disregard the pages of the filing that

exceed the page limitation; or (4) issue any other appropriate order,

including the issuance of sanctions.

Required Format: All pleadings, briefs, and motions must comply

with the following requirements:

•

12-point, 10 character-per-inch type or larger font

Double-spaced

Minimum of one-inch margins

Capable of being printed on 8.5- by11-inch paper

INQUIRIES AND CORRESPONDENCE

After an appeal is filed, all inquiries and correspondence related to filings should be

directed to the Office of the Clerk of Appellate Boards by telephone at 202-693-6300

or by fax at 202-513-6832. Other inquiries or questions may be directed to the Board

at (202) 693-6200 or ARBCorrespondence@dol.gov.

SO ORDERED.

__________________________________________

TAMMY L. PUST

Administrative Appeals Judge

__________________________________________

SUSAN HARTHILL

Chief Administrative Appeals Judge

__________________________________________

THOMAS H. BURRELL

Administrative Appeals Judge

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

SHANNON FAGAN,

COMPLAINANT

ARB CASE NO. 2023-0006

ALJ CASE NO. 2021-CER-00001

DATE: April 6, 2023

DEPARTMENT OF THE NAVY,

RESPONDENT.

Appearances:

For the Complainant:

Paula Dinerstein, Esq., Peter Jenkins, Esq., Colleen E. Teubner, Esq.,

and Hudson B. Kingston, Esq.; Public Employees for Environmental

Responsibility; Silver Spring, Maryland

For the Respondent:

Rachel J. Goldstein, Esq., Julie Ruggieri, Esq., and Alana M. Sitterly,

Esq.; Naval Litigation Office, Office of General Counsel; Washington,

District of Columbia

Before HARTHILL, Chief Administrative Appeals Judge, PUST and

BURRELL, Administrative Appeals Judges

ORDER ALLOWING FILING OF AMICUS CURIAE BRIEFS

In this case pending before the Administrative Review Board (ARB or Board), any

person or entity who wishes to file an amicus curiae brief is allowed to do so.

This Order supplements the Order Granting Interlocutory Review issued in this

case. The core requirements for all amicus briefs filed with the Board are set forth in

the Rules of the Board’s Rules of Practice and Procedure (codified at 29 C.F.R. Part

26) and Rules 26 and 28 of the Federal Rules of Appellate Procedure, incorporated

herein by reference. To the extent that there are significant differences between the

referenced requirements, those differences are noted below. Amicus briefs must

comply with all other relevant provisions of both the ARB’s Rules of Practice and

Procedure and the ARB’s Briefing Order in this particular case, including the rules

and requirements in the section titled Electronic Filing and Service.

1. Consent from the Parties and Permission from the Board Not

Required; Notice to the Parties Required

All persons or entities desiring to do so may file an amicus brief in this case in

support of either party or neither party. Potential amici do not need to obtain consent

from the parties to the case or the Board to file an amicus brief but must provide

notice to all parties of record and the Board at least 10 days prior to the deadline to

file the brief.

In all matters, the Board may prohibit the filing of or may strike an amicus

brief that would cause the disqualification of a Board member.

2. Required Contents

The text of every amicus brief must contain the following six sub-sections, with

a separate heading and text:

a. Descriptions of the Identities and Interests – This section must

describe or explain:

i. the name and identities of each amicus;

ii. the interests of each amicus in the appeal before the Board;

and

iii. how the amicus brief will be relevant to the issues involved in

the appeal and the ways in which the brief will contribute

materially to the proper disposition of the appeal;

b. Corporate Disclosure Statement (if applicable) – Any corporate

amicus must identify its parent corporation(s) and must either list

any publicly held corporation that owns 10% or more of the amicus

corporation’s stock or state that there is no such corporation;

c. Disclosures of Monetary or Editorial Contributions to the Amicus

Brief – The amicus brief must include certain disclosures concerning

monetary or editorial contributions to the brief. This section should

state whether a party or counsel for a party authored the amicus brief

in whole or in part and whether such counsel or a party made a

monetary contribution intended to fund the preparation or submission

of the amicus brief. This section also must identify every person (other

than the amicus, its members, or its counsel), who made such a

monetary contribution, or that no such contributions were made.

d. A Summary of the Argument;

e. The Argument; and

f. A Conclusion.

Any amicus brief longer than five pages must contain both a table of contents and a

table of authorities.

3. Filing Deadlines

The deadline to file an amicus brief in support of a complainant or respondent

is fourteen (14) days after the filing of the brief of the party the amicus supports. If

the amicus brief is in support of neither party, the deadline is fourteen (14) days after

the time allowed for filing the respondent’s brief.

Absent extraordinary good cause shown, the Board will not: (a) accept or

consider any amicus brief filed after the deadline for its submission; (b) entertain

any motions or requests to extend the deadlines; or (c) make any exceptions to these

requirements.

4. Page Limits

An amicus brief may not exceed 30 pages. The page limits do not include any

questions presented, the title page, the listing of parties, amici, and counsel, tables

of contents and authorities, signature block, certificate of disclosure (if needed), and

certificate of service.

The Board will not accept or consider any amicus brief that exceeds the page

limits and will not consider any requests for enlarged page limits.

5. Certain Briefs Prohibited

The Board will not accept or consider a reply brief from an amicus.

6. Information Updates Required

Amici must promptly file a supplemental statement regarding any updated

information previously provided to the Board.

SO ORDERED.

__________________________________________

TAMMY L. PUST

Administrative Appeals Judge

__________________________________________

SUSAN HARTHILL

Chief Administrative Appeals Judge

__________________________________________

THOMAS H. BURRELL

Administrative Appeals Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.