U.S. Department of Labor

Office of the Solicitor of Labor

November 2020
TABLE OF CONTENTS

TAB 1: AGENCY ORGANIZATIONAL OVERVIEW....................................................................... 1

TAB 2: STATE OF PLAY .......................................................................................................... 14

TAB 3: CALENDAR................................................................................................................. 40

TAB 4: BUDGET ..................................................................................................................... 41

TAB 5: AGENCY PERFORMANCE ............................................................................................ 45
TAB 1: Agency Organizational Overview

1

TAB 1: AGENCY ORGANIZATIONAL OVERVIEW

Mission

The Office of the Solicitor’s mission1 is to meet the legal service demands of the entire 

Department of Labor. As the Secretary of Labor and other Department officials seek to 

accomplish the Department's overall mission and to further specific priorities, the Office of the 

Solicitor (SOL) provides legal advice regarding how to achieve those goals.

Organizational Structure

The Office of the Solicitor (SOL) was established by the Organic Act of March 4, 1913, with the 

creation of the Department of Labor as an entity distinct and separate from the Department of 

Commerce and Labor. The Act provided, however, that the Department of Justice assign the 

Solicitor of Labor. On June 10, 1933, President Franklin D. Roosevelt issued Executive Order 

6166 which transferred the Solicitor from the Department of Justice to the Department of Labor. 

From 1933 to 1940, the Solicitor and staff were housed within the immediate Office of the 

Secretary of Labor. By administrative order on June 6, 1940, Secretary of Labor Frances Perkins 

transferred all Department attorneys and legal personnel to the supervision of the Solicitor of 

Labor, creating the Office of the Solicitor.

The Office of the Solicitor (SOL) meets the legal service demands of the entire Department of 

Labor (Department or DOL) to help achieve the Department’s mission. SOL has all the 

traditional functions of an agency general counsel (e.g., providing advice about appropriations, 

employment law matters, ethics, procurement, regulations, and legislation), but unlike other 

federal agencies whose litigation is entirely handled by the U.S. Department of Justice, DOL has 

independent litigation authority under many of the laws DOL enforces. A list of important 

ongoing litigation handled by SOL can be found elsewhere in this book.

SOL works closely with the DOL agencies (who are SOL’s clients) to develop and implement 

specific policies, programs, and strategies; provide the agencies legal advice and representation 

before a variety of courts and administrative tribunals; help advance DOL initiatives and 

priorities by working with the agencies to address legal issues and concerns, draft or review 

proposed legislation and regulations and other guidance; and advance or defend litigation crucial 

to the mission of Department agencies.

SOL’s staff of approximately 650, including around 485 lawyers, is organized into 10 national 

divisions and 7 regional offices with 7 sub-regional or branch offices. Staff is divided nearly 

equally between the national divisions and regional offices. The national divisions counsel the 

Department and its agencies on a variety of matters, including those related to appropriations, 

employment law, ethics, procurement, intergovernmental affairs, advice on regulations and subregulatory guidance and program administration, legislation, and litigation, and, in some 

instances, handle district court and appellate litigation. The regional offices focus on district 

court-level litigation and administrative trial-level proceedings, while also counseling the 

 1 https://www.dol.gov/agencies/sol/about
TAB 1: Agency Organizational Overview

2

agencies’ regional operations. SOL allocates work in the national office by client and subject 

matter; it allocates work in the regions by geographical area.

Organizational Chart
TAB 1: Agency Organizational Overview

3

Divisions

Black Lung and Longshore Legal Services Division (BLLLS)

The Division of Black Lung and Longshore Legal Services (BLLLS) provides legal services in 

connection with federal statutes that afford benefits to certain workers who are injured or die as a 

result of their employment, and to the survivors of those workers. These statutes, which are 

administered by the Office of Workers' Compensation Programs (OWCP), are:

• The Black Lung Benefits Act; and

• The Longshore and Harbor Workers' Compensation Act, as well as its extensions, 

including the Defense Base Act and Outer Continental Shelf Lands Act.

The Division advises OWCP on its legal obligations in administering the statutes, and aids in 

preparing regulations that implement the statutes. In addition, Division attorneys represent 

OWCP in appellate litigation before the Benefits Review Board and the U.S. Courts of Appeals. 

Division attorneys regularly participate in appeals to defend the agency's interests and present the 

agency's interpretations of the statutes and their implementing regulations.

The Associate Solicitor, assisted by the Deputy Associate, heads the Division and oversees all 

legal work. BLLLS has six Counsels: Administrative Litigation and Legal Advice, Regulations 

and Legislation, Appellate Litigation and Enforcement, Appellate Litigation, Longshore, and 

Enforcement and Administrative. BLLLS currently employs 17 lawyers and 6 support staff.

Civil Rights and Labor Management Division (CRLM)

CRLM provides legal services to three major programs: the Office of Federal Contract 

Compliance Programs (OFCCP); the Office of Labor-Management Standards (OLMS); and the 

Civil Rights Center (CRC) – which is part of the Office for the Assistant Secretary for 

Administration and Management (OASAM) – as well as several other programs described 

below.

CRLM provides legal services to the OFCCP in enforcement efforts involving federal 

contractors and subcontractors arising under Executive Order 11246, as amended; Section 503 of 

the Rehabilitation Act of 1973, as amended; and the Vietnam Era Veterans' Readjustment 

Assistance Act of 1974, as amended. CRLM represents the Secretary in administrative hearings 

and appeals arising under the OFCCP’s programs, provides legal services to the Regional Offices 

in their OFCCP enforcement work, and assists the U.S. Department of Justice with its 

representation of the OFCCP in defensive cases in federal court. CRLM also provides a wide 

range of other legal services to the OFCCP, including working closely with the agency to 

develop and draft regulations and sub-regulatory guidance, and providing legal advice about 

development and implementation of agency initiatives.

CRLM provides a broad range of legal services, including advice, litigation, and rulemaking to 

OLMS concerning the administration and enforcement of the Labor Management Reporting and 

Disclosure Act of 1959 (LMRDA). CRLM works with the U.S. Department of Justice to 

represent the Secretary in federal court in cases challenging private sector union officer elections 
TAB 1: Agency Organizational Overview

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conducted in violation of the LMRDA, and represents the Secretary in administrative 

enforcement of the parallel election requirements of the Civil Service Reform Act of 1978. 

CRLM also provides legal services to OLMS concerning the provisions of section 1209 of the 

Postal Reorganization Act of 1970, which directly apply the provisions of the LMRDA to labor 

organizations composed of postal employees; Section 1017 of the Foreign Service Act of 1980; 

Section 220(a)(l) of the Congressional Accountability Act of 1995; and 49 U.S.C. § 5333(b), 

which concerns the certification of mass transit employee protection agreements.

CRLM provides legal services to CRC on matters arising under the nondiscrimination provisions 

of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments Act of 1972, 

Sections 504 and 508 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, the 

Americans with Disabilities Act of 1990, and Section 188 of the Workforce Innovation and 

Opportunity Act (WIOA). The division also represents CRC in internal equal employment 

opportunity cases and related matters.

Additionally, CRLM provides legal services to the Office of Apprenticeship regarding matters 

arising under 29 CFR Part 30, Equal Employment Opportunity in Apprenticeship and Training; 

to the Office of Job Corps as to its nondiscrimination obligations; the Office of Disability 

Employment Policy; the Center for Faith and Opportunity Initiatives; the Women’s Bureau; and 

to the Veterans’ Employment and Training Service regarding the Vets 4212 Form.

CRLM also maintains liaison with the Equal Employment Opportunity Commission and the U.S. 

Department of Justice, and participates in matters of common concern. In addition, CRLM

provides advice to the Department, and assists in preparing regulations, legislative proposals, 

positions in amicus cases, and testimony in civil rights and labor-management matters.

The Associate Solicitor, assisted by the Deputy Associate, heads CRLM and oversees all legal 

work. CRLM has five Counsels: Civil Rights and Appellate Litigation, Interpretations and 

Advice, Labor-Management Policy, Civil Rights and Labor-Management Enforcement, and

Special Programs. CRLM currently employs 20 lawyers and five support staff.

Employment and Training Legal Services Division (ETLS)

ETLS provides legal advice, rulemaking, and litigation services to the Employment and Training 

Administration (ETA), the Bureau of International Labor Affairs (ILAB) and the Veterans' 

Employment and Training Service (VETS). 

ETLS assists ETA in implementing a number of statutes providing employment and training 

services, including WIOA and the Wagner Peyser Act. ETLS provides ETA with legal advice 

concerning a wide variety of employment and training programs that contribute to the more 

efficient functioning of the country’s labor market by providing high quality job training, 

education, employment, and labor market information for adults and youth. ETLS provides legal 

services to ETA include regarding the approximately $8 billion state and local workforce system 

funded through formula grants to states, the Job Corps program, and the dislocated worker grant 

programs. It also provides legal support for a variety of national discretionary grant programs, 

including the YouthBuild program, the Migrant and Seasonal Farmworker program, and the 
TAB 1: Agency Organizational Overview

5

Indian and Native American Program, and the registered and industry-recognized apprenticeship 

programs. ETLS also provides legal advice to a variety of ETA programs designed to provide 

income maintenance services, including the federal-state unemployment compensation program, 

the Disaster Unemployment Assistance program, and the Trade Adjustment Assistance program 

for workers whose employment has been adversely affected due to international trade. Finally, 

ETLS advises ETA’s Office of Foreign Labor Certification (OFLC) in the development of 

regulations guidance, and on matters of program administration related to the employment-based 

immigrant and non-immigrant programs, including the PERM, H-1B, H-2A, and H-2B 

programs, and represents OFLC in administrative litigation before the Department’s OALJ.

ETLS provides legal services to VETS, an agency that supports employment and training 

programs for veterans and separating service members, including the Jobs for Veterans State 

Grants and the Homeless Veterans’ Reintegration and Transition Assistance Programs. It also 

assists VETS in carrying out its responsibilities under the Uniformed Services Employment and 

Reemployment Rights Act, which protects service members’ civilian jobs while they perform 

military service and prohibits employment discrimination based on past, present, or intended 

service. ETLS also assists VETS in carrying out its responsibilities regarding enforcement of 

federal executive branch veterans' preference laws.

ETLS provides legal services to ILAB to assist it in carrying out the international activities of the 

Department, including responsibilities concerning the International Labor Organization and other 

international organizations. ETLS assists ILAB in developing protections for workers’ rights in 

trade agreements and monitoring compliance with those agreements, including the United StatesMexico-Canada Agreement. ETLS assists ILAB with its mission to help promote core 

international labor standards (such as the prevention of the worst forms of child labor) across the 

world by reviewing technical assistance projects and reports addressing these issues, including 

ILAB’s annual Findings on the Worst Forms of Child Labor.

The Associate Solicitor, assisted by the Deputy Associate, heads the Division and oversees all 

legal work. The Division has five Counsels: Employment and Training, Immigration Programs, 

International Affairs and Uniformed Services Employment and Reemployment Rights Act 

(USERRA), Job Corps and Apprenticeship, and Unemployment Programs. ETLS currently 

employs 23 lawyers and 1 support staff.

Fair Labor Standards Division (FLS)

The Solicitor's Fair Labor Standards Division is responsible for providing legal services in 

connection with the U.S. Department of Labor's administration and enforcement of a broad range 

of Federal labor standards laws providing basic protections for the Nation's workforce. These 

include:

• the minimum wage, overtime pay, child labor, and break time for nursing mothers 

provisions of the Fair Labor Standards Act;

• wage and working condition protections for farm workers under the Migrant and Seasonal 

Agricultural Workers Protection Act (MSPA);

• enforcement of OSHA field sanitation and temporary labor camp standards;
TAB 1: Agency Organizational Overview

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• leave entitlement and job protections under the Family and Medical Leave Act;

• prevailing wages for workers on federal contracts under the Service Contract 

Act and Davis-Bacon and Related Acts;

• worker garnishment protections;

• various worker protections afforded to temporary foreign workers, including workers with 

H visas;

• numerous laws protecting whistleblowers; and

• various other laws providing basic labor protections to workers.

The Associate Solicitor, assisted by the Deputy Associate, heads FLS and oversees all legal 

work. FLS has six Counsels: Appellate Litigation, Contract Labor Standards, Child Labor and 

Special FLSA Projects, Legal Advice, Trial Litigation, and Whistleblower Programs 

respectively. FLS currently employs 25 lawyers and 5 support staff.

Federal Employees’ and Energy Workers’ Compensation Division (FEEWC)

FEEWC provides a variety of legal services to the OWCP with respect to several benefit 

programs it administers – the Energy Employees Occupational Illness Compensation Program 

Act (EEOICPA), the Federal Employees’ Compensation Act (FECA), and the War Hazards 

Compensation Act (WHCA) – as well as administering the subrogation provisions of FECA on 

behalf of OWCP for all employees covered by the FECA. FEEWC also provides legal services to 

the entire Department concerning the Federal Tort Claims Act (FTCA) and the Military 

Personnel and Civilian Employees Claims Act (MPCECA). FEEWC provides litigation support 

to the Department of Justice in cases arising under the above-referenced statutes and benefit 

programs.

The Associate Solicitor, assisted by the Deputy Associate, heads FEEWC and oversees all legal 

work. FEEWC consists of three permanent units: the Claims and Compensation Unit, managed 

by the Counsel for Claims, which provides all legal services to OWCP relating to FECA and 

WHCA as well as to the Department regarding the FTCA and MPCECA; the Energy Unit, 

managed by the Counsel for Energy Employees Compensation, which provides all legal services 

to OWCP relating to EEOICPA; and the FECA Subrogation Unit, managed by the Counsel for 

FECA Subrogation, which administers the subrogation provisions of FECA on behalf of OWCP. 

FEEWC currently employs 17 lawyers and 25 administrative and support staff.

Office of Legal Counsel (OLC)

The Office of Legal Counsel (OLC) is responsible for providing a wide range of legal services to 

all agencies of the Department. The Office has four major areas of responsibility.

• First, the Office plays a major role in the Department's legislative activities by analyzing 

legislation impacting the Department, helping prepare testimony presented by 

Departmental at congressional committee hearings, and drafting proposed legislation.

• Second, the Office manages the Department's ethics program by providing advice and 

training and by administering the financial disclosure requirements.
TAB 1: Agency Organizational Overview

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• Third, OLC provides legal advice on a number of areas relating to government 

organization and operations, most notably administrative law and procedure.

• The fourth area within OLC is the Honors Attorney Program, which provides challenging 

professional opportunities for outstanding law school graduates. Honors Program 

attorneys work in the Solicitor's Office either at the Department's headquarters in 

Washington, D.C., or in one of seven Regional Offices, gaining exposure to a broad range 

of substantive legal work in one of the government's preeminent legal offices.

The Associate Solicitor heads OLC and oversees all legal work. OLC has three Counsels: 

Ethics, Honors Program, and Legislative Affairs. OLC currently employs 25 lawyers and 3 

support staff.

Management and Administrative Legal Services (MALS)

MALS is a combined legal and administrative office. It is responsible for providing legal 

services to the Department as a whole on a wide range of general law matters typically handled 

by federal “general counsel” offices, and also serves as SOL’s primary administrative office. 

On the legal side, MALS provides advice and litigation representation to the Department on 

diverse general law areas, including federal procurement and contracting, internal employment 

law and labor relations, the Freedom of Information Act (FOIA) and Privacy Act, and matters 

involving third party subpoenas. MALS attorneys represent the Department in litigation and 

administrative hearings in all of these areas, and assist the U.S. Department of Justice in related 

federal court litigation. MALS also advises the Department on matters pertaining to 

appropriations law; delegations of authority, memoranda of understanding; intellectual property; 

information law; and a number of governmental administrative mandates, including the Federal 

Advisory Committee Act (FACA), the Federal Records Act, the Paperwork Reduction Act, the eGovernment Act, and obligations relating to e-discovery and litigation support. In addition, the 

Division provides a full range of legal services to the following DOL agencies: OASAM; the 

Office of the Chief Financial Officer (OCFO); the Bureau of Labor Statistics (BLS); the Office 

of the Assistant Secretary for Policy (OASP); the Office of Public Affairs (OPA); and the 

EEOICPA Ombudsman.

On the administrative side, MALS is responsible for the management and administrative services 

that SOL provides to its component divisions, and for liaison with the Department’s central 

business offices. Among other things, MALS handles SOL’s internal systems for financial 

management and budgeting, human resources and labor relations, information technology, and 

litigation support. MALS also provides general administrative and technical support for SOL, 

such as by overseeing space utilization, and providing services pertaining to records management 

and technology purchase and maintenance. Additionally, the Office of Information Services 

within MALS serves as the Department’s FOIA administrative office, which includes 

responsibility for guidance and training to the decentralized FOIA offices throughout the 

Department and reporting on the Department’s overall FOIA performance.

The Associate Solicitor, assisted by two Deputy Associates, heads the Division and oversees all 

legal and administrative work. MALS has five legal Counsels: Appropriations Law; Employment 
TAB 1: Agency Organizational Overview

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Law; FOIA and Information Law; FOIA Appeals, Paperwork Reduction Act, and Federal 

Records Act; and Procurement Law. It also includes five administrative units: the SOL Human 

Resources Office, the SOL Financial Management Office, the SOL Legal Technology Unit, the 

SOL Litigation Support Unit, and the Office of Information Services (for DOL FOIA services). 

MALS generally has about 55 staff, equally divided between lawyers and administrative and 

support staff.

Mine Safety and Health Division (MSH)

The Solicitor's Division of Mine Safety and Health advises the United States Department of 

Labor's Assistant Secretary for Mine Safety and Health and the Mine Safety and Health 

Administration (MSHA) in connection with the development and enforcement of safety and 

health standards under the Federal Mine Safety and Health Act of 1977, as amended by the Mine 

Improvement and New Emergency Response Act of 2006 (Mine Act). The purpose of the Mine 

Act is to protect the safety and health of the Nation's miners. The Mine Act requires the 

Secretary of Labor or his or her representative to conduct periodic, unannounced safety and 

health inspections of the Nation's mines. The Mine Act also provides significant rights to miners 

to participate in ensuring safe and healthful mines. The Secretary has authority to compel 

immediate compliance with the Act and safety and health standards through the use of citations, 

orders, civil penalties, and other sanctions. Attorneys in the Division work in three practice 

areas: (1) standards and legal advice, (2) trial litigation, and (3) appellate litigation.

The Associate Solicitor, assisted by the Deputy Associate, heads MSH and oversees all legal 

work. MSH has three Counsels: Trial Litigation, Appellate Litigation, Standards and Legal 

Advice. MSH currently employs 19 lawyers and 3 support staff.

Occupational Safety and Health Division (OSH)

The Solicitor's Occupational Safety and Health Division (OSH) provides legal support to 

the Occupational Safety and Health Administration, the agency that ensures safe and healthy 

working conditions for workers. OSH provides legal services related to several workerprotection statutes:

• The Occupational Safety and Health Act of 1970

• Whistleblower protection provisions of the Surface Transportation Assistance Act and 

the Seaman's Protection Act

The OSH Division is responsible for appellate litigation in the U.S. Circuit Courts of Appeals 

and the Occupational Safety and Health Review Commission, and assists OSHA in developing 

standards, guidance, and interpretations. Division attorneys also work with OSHA to draft and 

review new regulations and supporting documentation. The OSH Division provides assistance to 

the SOL Regional Offices, particularly on high-profile, novel, and complex enforcement matters.

The Associate Solicitor, assisted by the Deputy Associate, heads OSH and oversees all legal 

work. OSH has seven Counsels: two for Appellate Litigation, two for Standards, two for 

General Legal Advice, and one for Special Litigation. OSH currently employs 28 lawyers and 4 

support staff.
TAB 1: Agency Organizational Overview

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Plan Benefits Security Division (PBSD)

The Plan Benefits Security Division (PBS) protects the rights of America's workers and retirees 

to their pension, health and other employment-related benefits under the Employee Retirement 

Income Security Act of 1974 (ERISA) through federal district court enforcement litigation, 

appellate and amicus curiae litigation, and advice and opinions with respect to statutory changes, 

ERISA regulations, sub-regulatory guidance, and interpretations of ERISA issued by the 

Secretary of Labor. Under ERISA, the Secretary is responsible to protect the participants and 

beneficiaries of over 650,000 retirement plans and approximately 2.3 million health and welfare 

plans and their interests in the over $8.7 trillion in assets held by those plans. In carrying out its 

mission, the Division's enforcement efforts, appellate and amicus practice, and regulatory and 

advice work cover the full range of ERISA issues.

The Associate Solicitor, assisted by the Deputy Associate, heads PBSD and oversees all legal 

work. PBSD has five Counsels: one for Appellate Litigation and Special Litigation, three for 

Litigation, and one for Regulations. PBSD is comprised of 30 attorneys and 7 support staff.

Regional Offices

The Regional Offices recommend and prosecute litigation in administrative law courts and 

federal district and bankruptcy courts throughout United States; provide legal and strategic 

advice and assistance to DOL worker protection agencies in support of their enforcement 

priorities; work cooperatively with state and local governments to achieve common worker 

protection goals; and assist U.S. Attorney’s offices in the prosecution of criminal cases arising 

from DOL agency civil investigations. For the most part, staff attorneys in the Regional Offices 

may handle any of the DOL programs in their region. 

Atlanta

The Atlanta Regional Office is responsible for civil trial litigation and legal advice and support 

for DOL for matters arising in Alabama, Florida, Georgia, Kentucky, Mississippi, North 

Carolina, South Carolina, and Tennessee. The Atlanta Region has a branch office in Nashville, 

which focuses primarily on litigation in Tennessee and Kentucky, though the two offices 

increasingly share and partner work throughout the region. 

The Regional Solicitor, assisted by the Deputy Regional Solicitor, heads the Atlanta Region and 

oversees all legal work. An Associate Regional Solicitor manages the Nashville Office. The 

Atlanta Region has seven Counsels: Wage Hour, OSHA, Civil Rights, ERISA, and two MSHA 

Counsels, one in each city. There are 26 attorneys in Atlanta and 14 attorneys in Nashville, with 

17 support staff.

Boston

The Boston Regional Office is responsible for civil trial litigation and legal advice and support 

for the DOL for matters arising in Connecticut, Maine, Massachusetts, New Hampshire, Rhode 

Island, and Vermont.
TAB 1: Agency Organizational Overview

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The Regional Solicitor, assisted by the Deputy Regional Solicitor, heads the Boston Region and 

oversees all legal work. The Boston Region has four Counsels: OSHA, ERISA, Wage Hour 

Programs and Civil Rights. The Boston Region employs 27 attorneys and five support staff.

Chicago

The Chicago Regional Office is responsible for civil trial litigation and legal advice and support 

for DOL for matters arising in Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, 

Nebraska, Ohio, and Wisconsin. It also handles ERISA matters arising from Kentucky. The 

Chicago Region has two branch offices located in Kansas City and Cleveland.

The Regional Solicitor, assisted by the Deputy Regional Solicitor, heads the Chicago Region and 

oversees all legal work. Associate Regional Solicitors manage the offices in Cleveland and 

Kansas City. Chicago has five Counsels: OSHA, MSHA, Wage Hour, ERISA and Civil Rights. 

Cleveland has two Counsels: Wage Hour/Civil Rights and OHSA. Kansas City also has two 

Counsels: Wage Hour and OSHA/MSHA. The Chicago Region employs a total of 69 employees 

– 35 in Chicago, 19 in the Kansas City, and 15 in Cleveland – 57 are lawyers and 12 are support 

staff.

Dallas

The Dallas Regional Office is responsible for most civil trial litigation and legal advice and support 

for DOL for matters arising in Arkansas, Colorado, Louisiana, Montana, New Mexico, North 

Dakota, Oklahoma, South Dakota, Texas, Utah, and Wyoming. The Dallas Region has a branch 

office in Denver.

The Regional Solicitor, assisted by the Deputy Regional Solicitor, heads the Dallas Region and 

oversees all legal work. An Associate Regional Solicitor manages the Denver Office. Dallas has 

five Counsels: Civil Rights, ERISA, MSHA, OSHA, and Wage Hour. Denver has two Counsels: 

Safety and Health and Wage Hour. The Dallas office has 23 attorneys and 5 support staff. The 

Denver office consists of 16 attorneys and 4 support staff. 

New York

The New York Regional Office is responsible for most civil trial litigation and legal advice and 

support for DOL in New Jersey, New York, Puerto Rico, and the U.S. Virgin Islands. 

The Regional Solicitor, assisted by the Deputy Regional Solicitor, heads the New York Region 

and oversees all legal work. New York has four Counsels: Wage Hour, ERISA, Civil Rights 

(who focuses on OFCCP, Whistleblower, and internal labor relations issues), and OSHA. The 

New York Region has 33 lawyers and 7 support staff.

Philadelphia

The Philadelphia Regional Office is responsible for most civil trial litigation and legal advice and 

support for DOL for matters arising in Pennsylvania, Maryland, Delaware, Virginia, West 
TAB 1: Agency Organizational Overview

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Virginia, and Washington, D.C. The Philadelphia Region has a branch office is in Arlington, 

Virginia.

The Regional Solicitor, assisted by the Deputy Regional Solicitor, heads the Philadelphia Region 

and oversees all legal work. An Associate Regional Solicitor manages the Arlington Office. 

Philadelphia has five Counsels: Wage Hour, Civil Rights, MSHA/BLBA, ERISA and OSHA. 

Arlington has two Counsels: Wage Hour and MSHA. The Philadelphia Region has 32 attorneys 

and 8 support staff in its 2 offices. 

San Francisco

The San Francisco Regional Office is responsible for civil trial litigation and legal advice and 

support for DOL for matters arising in Alaska, America Samoa, Arizona. California, 

Commonwealth of the Northern Mariana Islands, Guam, Hawaii, Nevada, Idaho, Oregon, and 

Washington. The San Francisco Region has branch offices in Los Angeles and Seattle.

The Regional Solicitor, assisted by the Deputy Regional Solicitor, heads the San Francisco 

Region and oversees all legal work. Associate Regional Solicitor manages the Los Angeles and 

Seattle Offices. San Francisco has four Counsels: Civil Rights, Labor Relations and Ethics, 

ERISA, and Wage Hour, with the Deputy supervising OSHA matters across the region. Los 

Angeles has a Wage and Hour Counsel, with the Associate Regional Solicitor supervising 

MSHA throughout the region. The Associate Regional Solicitor in Seattle supervises 

whistleblower matters across the region. The San Francisco Region typically bears a complement 

of 40 to 50 staff, with approximately 2-3 support staff per office.
TAB 1: Agency Organizational Overview

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Workforce At-A-Glance
TAB 1: Agency Organizational Overview

13

Organizational Changes During the Past Four Years

SOL has not experienced any major organizational changes in the past four years.

Key Leaders 

Political Leadership

• Kate O’Scannlain, Solicitor of Labor

• Timothy Taylor, Deputy Solicitor

Front Office Senior Executives

• Stanley E. Keen, Deputy Solicitor for National Operations

• Katherine E. Bissell, Deputy Solicitor for Regional Enforcement

National Office Senior Executives

• Rose Audette, Associate Solicitor for MALS

• Peter Constantine, Associate Solicitor for OLC

• Barry Joyner, Associate Solicitor for BLLLS

• Beverly Dankowitz, Associate Solicitor for CRLM

• Matthew Bernt, Associate Solicitor for ETLS

• Jennifer S. Brand, Associate Solicitor for FLS

• Thomas G. Giblin, Associate Solicitor for FEEWC

• April Nelson, Associate Solicitor for MSH

• Edmund C. Baird, Associate Solicitor for OSH

• William Scott, Associate Solicitor for PBSD

Regional Office Senior Executives

• Maia Fisher, Regional Solicitor in Boston

• Jeffrey S. Rogoff, Regional Solicitor in New York

• Oscar L. Hampton III, Regional Solicitor in Philadelphia

• Tremelle Howard, Regional Solicitor in Atlanta

• Christine Heri, Regional Solicitor in Chicago

• John Rainwater, Regional Solicitor in Dallas

• Janet Herold, Regional Solicitor in San Francisco
TAB 2: State of Play

14

TAB 2: STATE OF PLAY 

Policy and Regulatory Issues 

SOL works with the DOL client agencies to advance their mission and priorities. In other words, 

SOL provides legal services to advance the policies and priorities of the Department. The SOL 

Operating Plan lays out the significant policy, regulatory, and litigation initiatives for the year 

and provides agency by agency milestones to be accomplished. 

This briefing book does not attempt to summarize all the policy and regulatory issues of the 

Department, though of course SOL advises on almost all of these issues. Summaries of those 

policy and regulatory issues can be found in the briefing books of our clients. Below, however, 

are two initiatives which are “owned” by SOL.

FOIAXpress

In December 2018, the Deputy Secretary launched a FOIA Modernization Initiative to evaluate 

the overall effectiveness of the Departments FOIA program which, among other things, 

evaluated the need to leverage technology to help the Department and its free standing, 

decentralized agency components modernize the task of processing FOIA requests. After 

extensive research and product demonstrations, Departmental leadership decided to invest in 

FOIAXpress, a FOIA tracking solution that has the capacity to automate the lifecycle of a FOIA 

request from submission to the final delivery of documents. The system includes request and 

correspondence management, electronic receipt and posting capabilities, document review and 

redaction, an electronic records repository, and reliable annual and ad hoc FOIA reporting. Not 

only will FOIAXpress manage initial FOIA requests but it also has an added capability that will 

provide access to FOIA case files documenting administrative actions on FOIA matters to assist 

our legal staff who adjudicate FOIA appeals and defend the agency in FOIA litigation. As of 

October 1, 2020, the Department has fully launched FOIAXpress for 681 licensed users, 

representing each DOL agency component with the exception of the Office of Inspector General. 

On a parallel track, staff within the Office of the Solicitor and OASASAM OCIO are working 

with the designated contractors to migrate data from the legacy data systems. Once data 

migration work is completed, FOIAXpress will become the single source for FOIA data and 

FOIA case management. 

DOL Ethics Program

DOL’s ethics program is administered by the SOL the Solicitor serves as the Designated Agency 

Ethics Official (DAEO). The Associate Solicitor for Legal Counsel, a career SES, serves as the 

Alternate DAEO and manages the day-to-day operations of DOL’s ethics program with the 

assistance of a team of career ethics attorneys. SOL’s regulatory mandated responsibilities in 

this area include: Providing advice and counseling to prospective and current employees 

regarding government ethics laws and regulations; conducting ethics training; taking appropriate 

action to resolve conflicts of interest and the appearance of conflicts of interest; and 

administering the financial disclosure reporting system. 
TAB 2: State of Play

15

Management

SOL’s most important resource is its people. As such, the management of SOL is an important 

priority. SOL Leadership, including the SOL Front Office, Associate Solicitors, Deputy 

Associate Solicitors, Regional Solicitors, Deputy Regional Solicitors, and Associate Regional 

Solicitors participate in a weekly Leadership Meeting. Resource management and strategic 

management advice also is provided to the Solicitor and Deputy Solicitors through the Strategic 

Management Advisory Committee and the Budget Advisory Committee, both of which consist 

of two Associate Solicitors and two Regional Solicitors. Each week SOL compiles a significant 

activities report, which is circulated across SOL.

SOL continues to promote staff engagement and development. The SOL Training Committee, 

the membership of which includes managers and employees, develops an annual training 

program for SOL wide training. Trainings during FY 2019 and FY 2020 included 

program/counsel conferences, NITA trial and deposition trainings, writing training, paralegal 

training and regional conferences. Over the past years, SOL has developed the concept of SOL 

University to encourage virtual trainings utilizing peer to peer training on current litigation or 

management topics. SOL also maintains a very successful mentoring program and an internal 

leadership development program.

Finally, SOL continues to strive to create positive incentives for its employees. Five SOL awards 

– three for attorneys, one for support staff, and one for managers – are given annually to 

employees in recognition for outstanding work, and SOL continues its program of annual 

attorney promotions to GS-15 paygrade.

Significant Litigation

October 2020 Note: The following case list includes significant cases in FY2020 and is 

representative of cases currently in litigation. Some of the listed cases are pending while others 

were resolved in FY 2020. SOL prepares updated weekly reports of significant cases for the 

Solicitor and Office of the Secretary, which contain non-public information and will be provided 

to incoming officials as appropriate.

This document is organized by Department of Labor (DOL) agency, then statute/program/subprogram, and then in the following order:

• Supreme Court

• U.S. Courts of Appeal in order by Circuit Number (non-number circuits (e.g.,

D.C.) are listed first)

• U.S. District Courts

• Administrative Bodies

o Administrative Review Board

o DOL Office of Administrative Law Judges

o OSH/Federal Mine Safety and Health Review Commission

o OSH/Federal Mine Safety and Health Review Commission Administrative 

Law Judge
TAB 2: State of Play

16

• Other

In a Supreme Court, U.S. Court of Appeals, or district court case, if Scalia or Department of 

Labor is in the case name, then that likely means that the Department is a party to the lawsuit. If 

Scalia or Department of Labor is not in the name, then likely we are participating as amicus 

(“friend of the court”) and have submitted (either on our own or because the Court asked us to) a 

brief explaining the Department’s position on the matter. 

Employee Benefit Security Administration

Case Name: Rutledge v. Pharmaceutical Care Management Ass’n.

Venue: Supreme Court

Issue: Whether ERISA preempts a state’s regulation of the rates at which pharmacy 

benefits managers reimburse pharmacies.

Case Name: New York v. U.S. Department of Labor

Venue: D.C. Circuit

Issue: Whether a DOL rulemaking concerning group health plans offered through an 

association of employers (referred to as Association Health Plans or “AHPs”) 

violates the Administrative Procedure Act by deviating from ERISA’s definition 

of “employer” and prior DOL guidance. Eleven states and the District of 

Columbia sued DOL, contending that the AHP rule impermissibly relaxes the 

standards by which employers can form ERISA-covered AHPs (which generally 

are large group health plans), thereby permitting employers to evade the 

requirements that the Affordable Care Act imposes on small-group plans. The 

United States District Court for the District of Columbia struck down the rule in 

March 2019. 

Case Name: Ovist v. Unum

Venue: First Circuit

Issue: Whether an ERISA plan has the burden of proving that a limitation on benefits 

applies after the participant has made a prima facie case of coverage. 

Case Name: Scalia v. Evolve Bank & Trust

Venue: Fourth Circuit

Issue: Whether defendants Evolve Bank & Trust, as trustee of the Sentry Equipment 

Erectors, Inc. Employee Stock Ownership Plan, and Adam Vinoskey, Sentry’s 

founder and CEO, breached their fiduciary duties in connection with the ESOP’s 

purchase of Sentry stock from Vinoskey in 2010. After a bench trial, the district 

found that defendants breached their fiduciary duties, and that as a result, the 

ESOP overpaid for the stock by approximately $6.5 million, for which defendants 

are liable. 

Case Name: Howard Jarvis Taxpayers Ass’n. v. The California Secure Choice Retirement 

Savings Program
TAB 2: State of Play

17

Venue: Ninth Circuit

Issue: Whether California’s Secure Choice Act, which requires certain employers to

 facilitate the enrollment of their employees in an individual retirement account 

program (known as CalSavers) if the employer does not offer another qualifying 

retirement plan, is preempted by ERISA section 514(a), 29 U.S.C. § 1144(a), 

because it makes reference to and has a connection with ERISA-covered plans.

Case Name: White Mountain Apache Tribe v. Scalia

Venue: U.S. District Court for the District of Columbia

Issue: Whether the Secretary wrongfully assessed $140,000 in administrative penalties 

against WMAT under ERISA section 502(c)(2) after the Tribe failed to submit 

Independent Qualified Public Accountant reports with its annual report to the 

Department for the Tribe’s ERISA-covered retirement plan, as required by 

ERISA and the regulations. WMAT asks the Court to set aside the Department’s 

actions as arbitrary and capricious, refund the penalties assessed by the 

Department, and provide other declaratory and injunctive relief.

Case Name: Scalia v. Reliance Trust Company

Venue: U.S. District Court for the District of Arizona

Issue: Whether fiduciaries of the RVR ESOP violated ERISA sections 404 and 406 by 

causing the Plan to pay more than adequate consideration for RVR stock. The 

Secretary alleges that the ESOP fiduciaries caused an overpayment by using a 

truncated investigation into the company value and failing to properly consider 

relevant valuation factors such as lack of company control by the ESOP and the 

dilutive effect of warrants and stock appreciation rights.

Case Name: Data Marketing Partnership, LP v. Scalia

Venue: U.S. District Court for the Northern District of Texas

Issue: Whether plaintiff’s benefit arrangement is a single employer ERISA-covered 

health plan and not a Multiple Employer Welfare Arrangement as defined by 

ERISA. 

Case Name: Scalia v. DST Systems, Inc. and Ruane, Cunniff & Goldfarb, Inc.

Venue: U.S. District Court for the Southern District of New York

Issue: Whether the fiduciaries, including the investment manager, of the DST 401(k) 

profit sharing plan failed to properly diversify plan assets by investing heavily in 

a single pharmaceutical company, after which the stock value dropped 

significantly causing plan losses. 

Case Name: Scalia v. Kavalec 

Venue: U.S. District Court for the Northern District of Ohio 

Issue: Whether fiduciaries of the Fleet Owners Insurance Fund improperly paid

themselves more than $1.5 million in compensation over a six-year period, 

approving unreasonable and excessive travel expenses, allowing a former union 

officer to participate in the plan at no cost, and failing to comply with the 

Affordable Care Act and Health Insurance Portability and Accountability Act.
TAB 2: State of Play

18

Case Name: Scalia v. Reliance Trust

Venue: U.S. District Court for the Northern District of Minnesota 

Issue: Whether fiduciaries of the Kurt Manufacturing Company, including the board of 

directors and the independent fiduciary Reliance Trust, improperly caused the 

Plan to pay more than adequate consideration for Kurt stock. 

Case: Scalia v. TPP Holdings, Inc., et al.

Venue: U.S. District Court for the Northern District of Georgia (on remand)

Issue: Whether the fiduciaries of the TPP Holdings, Inc. Employee Stock Ownership 

Plan, Robert Preston and the company, improperly caused the Plan to pay for 

more than adequate consideration for the company’s stock, because the owner 

both misled the valuation company about the level of control the ESOP would 

have and pushed one sale of stock before the valuation was complete. 

Case: Secretary v. Advance Benefit Management Systems USA, Inc. et al.

Venue: U.S. District Court for the Northern District of Georgia 

Issue: Whether defendants, third-party administrators to multiple health care plans, 

commingled, misappropriated, mismanaged, and diverted for their own use plan 

funds that were intended to be used for payment of uninsured claims, leaving 

more than $7,000,000 in unpaid claims.

Employment and Training Administration

Immigration Programs

Case Name: Panda, et al. v. Secretary of Labor, Secretary of Homeland Security, Secretary of 

State

Venue: D.C. Circuit (on appeal to consider denial of preliminary injunction)

Issue: Whether Presidential Proclamation 10052 (suspending the entry of certain 

immigrant and nonimmigrants into the United States on the basis that they present 

a risk to the U.S. labor market following the COVID-19 outbreak), and DHS’s 

and DoS’s application thereof, is ultra vires and unlawful action under the INA

and APA as well as violative of the Equal Protection and Due Process clauses of 

the U.S. Constitution. 

Case Name: Outdoor Amusement Business Assn., et al. v. DOL, ETA, WHD, DHS, USCIS

Venue: Fourth Circuit

Issue: Whether the district court correctly granted summary judgment for the 

Government in a challenge to DOL’s role in the H-2B temporary non-agricultural 

employment program, including among other things whether the complaint is 

time-barred, whether plaintiffs followed the proper procedures for a certification 

from DOL and DHS, and whether the agencies properly issued joint rules. 

Case Name: Padilla Construction Co., et al. v. Secretary of Labor, ASET, OFLC 

Administrator, Secretary of Homeland Security, DHS, USCIS Director
TAB 2: State of Play

19

Venue: U.S. District Court for the Central District of California

Issue: Whether DOL’s adoption and modification of application-processing/assignment 

procedures for the H-2B temporary non-agricultural employment program 

through policy announcements is unlawful rulemaking in violation of the APA 

and whether USCIS’s lottery selection process violates the Immigration and 

Nationality Act. 

Case Name: Chamber of Commerce, et al. v. Secretary of Labor, DOL, Secretary of Homeland 

Security, DHS

Venue: U.S. District Court for the Northern District of California

Issue: Whether DOL’s decision to issue an Interim Final Rule, with an immediate 

effective date, amending regulations governing the prevailing wages for 

employment opportunities that U.S. employers seek to fill with foreign workers 

on a permanent or temporary basis through certain employment-based immigrant 

visas or through H-1B, H-1B1, or E-3 nonimmigrant visas for “specialty 

occupations” violated the APA requirement for notice-and-comment. The 

plaintiffs also challenge DHS’s decision to issue an interim final rule, with an 

effective date of December 7, 2020, which amends the definition and standards 

for a “specialty occupation,” among other changes to the H-1B program. (See 

also ITServe and Purdue University cases below.)

Case Name: Calixto, et al. v. Secretary of Labor, DOL

Venue: U.S. District Court for the District of Columbia

Issue: Whether DOL’s alleged failure to give effect to the revised prevailing wage 

determination methodology for the H-2B temporary non-agricultural employment 

program set forth in the 2013 Interim Final Rule, as embodied by supplemental 

prevailing wage determinations (SPWDs), is arbitrary and capricious under the 

APA. On March 26, 2020, the plaintiffs sought leave to amend their complaint 

after DOL issued a notice, on March 13, 2020, withdrawing its December 17, 

2014, Notice of Intent to Issue a Declaratory Order (Notice of Intent). The Notice 

of Intent had proposed to overrule the Board of Alien Labor Certification 

Appeals’ decision in Island Holdings, 2013-PWD-00002 (BALCA Dec. 3, 2013) 

(en banc), through an adjudicatory proceeding that would result in a declaratory 

order issued under 5 U.S.C. 554(e). 

Case Name: Garcia, et al. v. Secretary of Labor, DOL

Venue: U.S. District Court for the District of Columbia

Issue: Whether DOL’s policy and practice of permitting states to provide “no finding” 

results for annual prevailing wage surveys under the H-2A temporary agricultural 

employment program violates the APA and whether DOL should be enjoined 

from certifying applications in the absence of an established prevailing wage, 

which the Plaintiffs allege should be based on the Occupational Employment 

Survey (OES). 

Case Name: Hispanic Affairs Project, et al. v Secretary of Labor, DOL, Assistant Secretary for 

ETA (ASET), Secretary of Homeland Security, DHS 
TAB 2: State of Play

20

Venue: U.S. District Court for the District of Columbia (on remand)

Issue: Whether DOL’s regulation that allows 364-day temporary labor certifications and 

DHS’s alleged policy of approving visa petitions on behalf of the same 

beneficiary in three consecutive years violated the APA. (The district court 

closed the case for administrative purposes, but plaintiffs can move to reopen the 

litigation if DOL has not made substantial progress on required rulemaking by 

May 2021.)

Case Name: Purdue University, et al. v. Secretary of Labor, DOL

Venue: U.S. District Court for the District of Columbia

Issue: Whether DOL’s decision to issue an Interim Final Rule, with an immediate 

effective date, amending regulations governing the prevailing wages for 

employment opportunities that U.S. employers seek to fill with foreign workers 

on a permanent or temporary basis through certain employment-based immigrant 

visas or through H-1B, H-1B1, or E-3 nonimmigrant visas for “specialty 

occupations” violated the APA requirement for notice-and-comment. (See also 

Chamber of Commerce case, above, and ITServe case, below.)

Case Name: ITServe Alliance, et al. v. Secretary of Labor, ASET

Venue: U.S. District Court for the District of New Jersey

Issue: Whether DOL’s decision to issue the Interim Final Rule, with an immediate 

effective date, amending regulations governing the prevailing wages for 

employment opportunities that U.S. employers seek to fill with foreign workers 

on a permanent or temporary basis through certain employment-based immigrant 

visas or through H-1B, H-1B1, or E-3 nonimmigrant visas for “specialty 

occupations” violated the APA requirement for notice-and-comment. (See also 

Chamber of Commerce and Purdue University cases above.)

Case Name: Kolla, et al. v. Secretary of Labor, Secretary of Homeland Security, Secretary of 

State

Venue: U.S. District Court for the Middle District of North Carolina

Issue: Whether Presidential Proclamation 10052 (suspending the entry of certain 

immigrant and nonimmigrants into the United States on the basis that they present 

a risk to the U.S. labor market following the COVID-19 outbreak), and DHS’s 

and DoS’s application thereof, is ultra vires and unlawful action under the INA

and APA as well as violative of the Equal Protection and Due Process clauses of 

the U.S. Constitution. 

Case Name: PeopleTech Group, Inc. v. Secretary of Labor, DOL, Secretary of Homeland 

Security, USCIS, USCIS Director 

Venue: U.S. District Court for the Western District of Washington

Issue: Whether DHS’s purported invalidation of a permanent labor certification pursuant 

to DOL’s regulation at 20 C.F.R. § 656.30(d) is ultra vires and whether a rule 

invalidating approved labor certifications based on the failure to disclose a family 

relationship violates notice-and-comment rulemaking and was impermissibly 

applied to the plaintiff’s application retroactively.
TAB 2: State of Play

21

Mine Safety and Health Administration

Rule and Guidance Challenges

Case Name: National Mining Association, et al. v. Secretary of Labor, MSHA

Venue: Eleventh Circuit

Issue: Whether the rulemaking record, including data concerning avoidable mining 

accidents and MSHA’s economic assumptions, supports MSHA’s 2017 

metal/nonmetal mine workplace examinations rule.

Case Name: National Mining Association, et al. v. Secretary of Labor, MSHA and Murray 

Energy, et al. v. Secretary of Labor, MSHA

Venue: U.S. District Court for the Southern District of Ohio

Issue: Whether MSHA’s 2013 Pattern of Violations rule violated due process in 

allowing POV notices to be based on non-final citations and orders and in failing 

to subject POV screening criteria and corrective action plan criteria to notice-andcomment rulemaking, and whether it ignored costly implications of the rule.

Mine Safety and Health Act

Case Name: Secretary of Labor, MSHA v. Knight Hawk Coal, LLC 

Venue: D.C. Circuit

Issue: Whether MSHA abused its discretion in revoking an underground coal mine’s 

ventilation plan after discovering unventilated areas in the mine.

Case Name: Secretary of Labor, MSHA v. M-Class Mining

Venue: D.C. Circuit

Issue: Whether MSHA abused its discretion in issuing a Mine Act 103(k) accident 

control order that evacuated underground coal miners and briefly stopped 

production, based on a miner’s hospitalization with carbon monoxide poisoning.

Case Name: U.S. v. Donald L. Blankenship (criminal)

Venue: Fourth Circuit

Issue: Whether the District Court properly dismissed Mr. Blankenship’s Motion to 

Vacate Conviction, which argued that the United States withheld potentially 

exculpatory evidence before his criminal trial following a 2010 mine explosion.

Case Name: U.S. v. Charley Barber, et al. (criminal)

Venue: U.S. District Court for the Western District of Kentucky

Issue: Whether nine agents of Armstrong Coal Company conspired to submit fraudulent 

dust samples to MSHA from two underground coal mines.

Case Name: Secretary of Labor, MSHA v. Northshore Mining Company

Venue: Federal Mine Safety and Health Review Commission

Issue: In establishing that an elevated walkway collapse that an engineering report had 

presaged a year earlier was a “reckless flagrant” Mine Act violation, whether the 
TAB 2: State of Play

22

Secretary must prove a degree of negligence that exceeds that of “reckless 

disregard.”

Occupational Safety and Health Administration

Rule and Guidance Challenges

Case Name: National Chimney Sweep Guild v. OSHA

Venue: Seventh Circuit

Issue: Whether the requirements of OSHA’s walking-working surfaces rule (fall 

protection) for general industry are feasible for chimney sweeps. This case has 

been stayed pending settlement discussions for several years.

Case Name: Consolidated challenges to three Beryllium final rules 

Venue: Eighth Circuit

Issue: Whether three final rules establishing and revising health standards 

foroccupational exposure to beryllium in the construction and shipyards sectors 

are supported by substantial evidence in the rulemaking record. 

Case Name: National Association of Homebuilders et al. v Perez

Venue: U.S. District Court for the Western District of Oklahoma 

Issue: Whether the anti-retaliation provisions of the Improve Tracking of Workplace 

Injuries and Illnesses Final Rule are arbitrary and capricious and exceed OSHA’s 

authority under the OSH Act, and whether the rulemaking was procedurally 

flawed; and whether the anti-retaliation provisions violate the First and Fifth 

Amendments.

Case Name: Public Citizen Health Research Group et al. v. Acosta; New Jersey et al. v. 

Acosta

Venue: U.S. District Court for the District of Columbia

Issue: Whether the rescission of a requirement for employers to submit certain 

recordkeeping data electronically under the Improve Tracking of Workplace 

Injuries and Illnesses Final Rule was arbitrary, capricious, an abuse of discretion, 

or otherwise contrary to law.

Occupational Safety and Health Act

Case Name: Scalia v. Red Lake Nation Fisheries, Inc.

Venue: Eighth Circuit

Issue: Whether the Occupational Safety and Health Act of 1970 applies to a tribal 

commercial enterprise.

Case Name: Acosta v. Wynnewood Refining Co.

Venue: Tenth Circuit 
TAB 2: State of Play

23

Issue: Whether the PSM standard applied to a boiler that exploded at a refinery; and 

whether Wynnewood was the successor to a previous company to which OSHA 

had issued similar citations, for the purpose of issuing repeat citations.

Case Name: Jane Does I, II, III, et al. v. Eugene Scalia 

Venue: U.S. District Court for the Middle District of Pennsylvania

Issue: Whether the Secretary arbitrarily and capriciously failed to seek an injunction to 

protect employees at a meatpacking facility from an imminent danger (COVID19). 

Case Name: Secretary v. U.S. Postal Service

Venue: Occupational Safety and Health Review Commission 

Issue: Whether the Secretary proved a general duty clause violation against the Postal 

Service for exposing employees to the hazard of excessive heat while delivering 

mail.

Case Name: Secretary v. UHS of Westwood Pembroke, Inc.

Venue: Occupational Safety and Health Review Commission 

Issue: Whether the Secretary established one or more feasible methods of abating the 

hazard of patient-on-staff workplace violence at Pembroke Hospital; whether 

UHS-Pembroke and its parent corporation should be deemed a “single employer” 

under the OSH Act; and whether the violation is properly characterized as a 

repeat violation.

Case Name: Secretary v. Aluminum Shapes

Venue: Occupational Safety and Health Review Commission ALJ

Issue: Whether the employer should be held liable for egregious (per-instance) willful 

violations of OSHA’s lockout/tagout standard, and willful, repeat, and serious 

violations of other requirements, totaling more than $2 million in proposed 

penalties.

Case Name: Secretary v. BB Frame LLC dba Frame Q LLC

Venue: Occupational Safety and Health Review Commission ALJ

Issue: Whether the owner of a construction company that changed corporate entities to 

evade prior OSHA penalties should be held individually liable for nearly $2 

million in proposed penalties for willful, repeat, and serious violations at multiple 

construction sites.

Case Name: Secretary v. Great Lakes Tank & Vessel

Venue: Occupational Safety and Health Review Commission ALJ

Issue: Whether the employer should be liable for egregious willful violations of OSHA’s 

confined space and fall protection requirements and a willful violation of OSHA’s 

training requirements, all of which are related to a double fatality and carry a total 

proposed penalty of $1,565,271.
TAB 2: State of Play

24

Case Name: Secretary v. Choice Products

Venue: Occupational Safety and Health Review Commission ALJ

Issue: Whether the employer should be liable for egregious willful violations of OSHA’s 

lockout/tagout standards and training requirements, all of which carry a total 

proposed penalty of $782,526.

Case Name: Secretary v. First Marine LLC 

Venue: Occupational Safety and Health Review Commission ALJ

Issue: Whether the employer should be liable for violations in relation to a Kentucky 

tugboat explosion in January 2018, killing three workers and injuring six, while 

employees were cutting and welding in an atmosphere containing flammable gas, 

with a total proposed penalty of $795,254.

Case Names: Scalia v. JBS/Swift (Greeley, Colorado) 

Scalia v. Smithfield Pork Processing (Sioux Falls, South Dakota) 

Venue: Occupational Safety and Health Review Commission ALJ

Issue: Whether the employers are liable under the OSH Act's general duty clause for 

failing to protect their employees by using feasible means of abatement that 

would have materially reduced exposure to the hazards associated with COVID19. 

Case Name: Scalia v. Chesapeake Energy Corp.

Venue: Occupational Safety and Health Review Commission ALJ

Issue: Whether the employer willfully failed to remove unapproved electrical equipment 

located next to the wellhead, which resulted in a fire and explosion that killed 

three employees, and whether the employer’s contracted site supervisor, 

commonly referred to as a “company man,” was an employee. 

Case Name: Scalia v. Heaslip Engineering, LLC

Venue: Occupational Safety and Health Review Commission ALJ 

Issue: Whether the employer, when multiple fatalities and injuries occurred as the Hard 

Rock Hotel in New Orleans collapsed in October 2019, willfully violated Section 

5(a)(1) of the OSH Act by exposing employees to hazards of falling materials and 

building collapse because structural steel connections were inadequately 

designed, reviewed, or approved, which affected the structural integrity of 

connections. 

Case Name: Secretary of Labor v. Dollar Tree, Inc.

Venue: Occupational Safety and Health Review Commission ALJ 

Issue: Whether the employer, at five stores in Idaho, should be held liable for repeat 

violations of OSHA’s standards on exit routes needing to be free of obstructions, 

maintaining sufficient working space around electrical equipment, safely stacking 

inventory to prevent collapse, and other serious citations, totaling more than $1 

million in proposed penalties.
TAB 2: State of Play

25

Case Name: Secretary v. Dollar Tree, Inc. 

Venue: Occupational Safety and Health Review Commission ALJ

Issue: Whether six discount variety stores committed willful and repeated violations of 

OSHA standards ensuring access to exit routes and electrical panels and if so, 

whether approximately $1.8 million in proposed penalties should be sustained.

Case Name: Secretary of Labor v. United States Postal Service (Woodland Hills Station)

Venue: Occupational Safety and Health Review Commission ALJ

Issue: Whether the USPS violated OSHA’s general duty clause when it exposed a letter 

carrier to extreme heat while on the job, resulting in her death. The case has been 

stayed by the ALJ pending the Commission’s decision in five similar cases 

against the USPS that are currently on appeal. 

Case Name: Secretary of Labor v. U.S. Postal Service (Silverado Station)

Venue: Occupational Safety and Health Review Commission ALJ

Issue: Whether the USPS violated OSHA’s general duty clause when it exposed several 

letter carriers to extreme heat while on the job, resulting in their heat-related 

illnesses. (Stayed pending appeal of other cases to the Review Commission.)

Case Name: Secretary v. UHS of Fuller, Inc./UHS of Delaware, Inc.

 Secretary v. Arbour Hospital, Inc./UHS of Delaware, Inc.

Venue: Occupational Safety and Health Review Commission ALJs

Issue: Whether these behavior health hospitals and their management company 

committed serious violations of section 5(a)(1) of the Act when they failed to 

ensure that their employees were adequately protected from workplace violence 

arising from patient aggression.

Case Name: Secretary v. Shawn Purvis, dba Purvis Home Improvement, Inc.

Venue: Occupational Safety and Health Review Commission ALJ

Issue: Whether this individual operating as a roofing contractor committed egregious 

willful fall protection violations at multiple worksites and, if so, whether 

approximately $2 million in proposed penalties should be sustained. 

Case Name: Secretary v. Otis Elevator Company

Venue: Occupational Safety and Health Review Commission ALJ

Issue: Whether this elevator company committed willful and serious violations of OSHA 

lockout/tagout and confined space standards. 

Whistleblower Statutes including Section 11(c) of the OSH Act

Case Name: Thorstenson v. DOL

Venue: Ninth Circuit

Whether the ARB correctly concluded in this Federal Railroad Safety Act 

whistleblower case that the employee’s protected injury report was not a 

contributing factor to the railroad’s decision to fire him and, in any event, the 
TAB 2: State of Play

26

railroad employer met its affirmative defense to show by clear and convincing 

evidence that it would have taken the same action absent the protected activity.

Case Name: Yowell v. ARB

Venue: Fifth Circuit

Issue: Whether the ARB correctly concluded in this Federal Railroad Safety Act 

whistleblower case that the employee failed to show, based solely on this chain of 

events, that his late injury report was a contributing factor to his discharge and, 

alternatively, whether the ARB properly concluded that the railroad employer met 

its burden to prove by clear and convincing evidence that it would have fired the 

employee even in the absence of his protected injury report.

Case Name: Peck v. DOL

Venue: Fourth Circuit

Issue: Whether the ARB properly held that the Energy Reorganization Act 

whistleblower provision does not waive the Nuclear Regulatory Commission’s 

(“NRC”) sovereign immunity for purposes of a whistleblower claim against the 

NRC.

Case Name: Thibodeau v. Walmart Stores, Inc.

Venue: Administrative Review Board

Issue: Whether the ALJ properly found that the employee had not engaged in protected 

activity under the Sarbanes-Oxley Act whistleblower provision because he could 

not reasonably believe that the misconduct he alleged violated the SEC rule 

requiring publicly-traded companies to establish, maintain, and attest to internal 

control over financial reporting.

Case Name: Denneny v. MBDA, Inc.

Venue: Administrative Review Board

Issue: Whether summary judgment for the employer is warranted on the grounds that 

MBDA, Inc. is not a contractor covered by the Sarbanes-Oxley Act whistleblower 

provision or alternatively, because the employee failed to establish a genuine 

issue of material fact regarding whether he had engaged in SOX-protected 

activity.

Case Name: Jackson v. Bouchard Transportation Company, Inc. et al.

Venue: DOL Office of Administrative Law Judges

Issue: This discrimination complaint alleges that an employee was terminated in 

retaliation for engaging in protected activity under the Seaman’s Protection Act, 

including cooperating with investigators and reporting safety concerns to the U.S. 

Coast Guard.
TAB 2: State of Play

27

Office of Federal Contract Compliance Programs

Executive Order 11246 (Discrimination by Federal Contractors)

Case Name: Oracle America Inc. v. OFCCP

Venue: U.S. District Court for the District of Columbia 

Issue: Whether the administrative enforcement scheme that the Department has 

implemented to effectuate E.O. 11246 is authorized by Congress.. 

Case Name: OFCCP v. Oracle 

Venue: DOL Administrative Review Board

Issue: Whether Oracle engaged in systemic intentional compensation discrimination, 

discriminatory steering or job assignment, and disparate impact discrimination in 

setting starting pay based on prior salary, against female employees in the Product 

Development, Information Technology and Support job functions, and against 

Asian and African-American employees in the Product Development job function. 

The ALJ issued a Recommended Decision and Order on September 22, 2020, 

finding no discrimination. 

Case Name: OFCCP v. Enterprise RAC Co.

Venue: DOL Administrative Review Board

Issue: Whether Enterprise discriminated against African Americans in hiring for 

management trainee positions. 

Case Name: OFCCP v. WMS

Venue: DOL Administrative Review Board

Issue: Whether WMS discriminated against White, Black, Asian, and American 

Indian/Alaskan Native laborer applicants in favor of Hispanic laborer applicants; 

discriminated against female laborers based on their gender and Black/White 

laborers based on their race/national origin when assigning hours and 

compensation rates; and failed to ensure and maintain a working environment free 

from harassment, intimidation, and coercion at construction sites where WMS 

employees worked.

Case Name: OFCCP v. Convergys

Venue: DOL Office of Administrative Law Judges 

Issue: Whether OFCCP selected multiple Convergys establishments for review in 

compliance with Fourth Amendment requirements. 

Case Name: OFCCP v. JP Morgan Co.

Venue: DOL Office of Administrative Law Judges 

Issue: Whether JP Morgan discriminated in compensation against female employees in 

certain positions. 
TAB 2: State of Play

28

Office of Labor-Management Standards

Labor-Management Reporting and Disclosure Act

Case Name: Scalia v. International Longshore and Warehouse Union

Venue: U.S. District Court for the Northern District of California

Issue: Whether the international union violated the LMRDA in its 2018 election of 

officers by failing to provide adequate safeguards to insure a fair election or a 

reasonable opportunity to vote with respect to the members voting in Panama. 

Federal Transit Act (Section 13(c))

Case Name: Amalgamated Transit Union (ATU) v. Department of Labor (DOL)

Venue: U.S. District Court for the Eastern District of California 

Issue: Whether DOL was arbitrary and capricious, in violation of the Administrative 

 Procedure Act, when it issued labor certifications to California transit operators

 despite the State’s Public Employees’ Pension Reform Act (PEPRA), which made

 changes to the collective bargaining rights of transit employees protected by 

 Section 13(c). 

Office of Workers’ Compensation Programs

Black Lung Benefits Act

Case Name: Appointments Clause Litigation (multiple cases)

Venue: Fourth Circuit, Sixth Circuit, Ninth Circuit, Benefits Review Board, 

Office of Administrative Law Judges

Issue: Whether the coal companies forfeited their Appointments Clause challenges to the 

ALJ’s authority to render decisions by failing to raise them before the ALJ; and 

whether the removal protection afforded by 5 U.S.C. 7521 rendered ALJs’ 

appointments unconstitutional. 

Case Name: Affordable Care Act Litigation (multiple cases)

Venue: Benefits Review Board, Office of Administrative Law Judges

Issue: Whether two important Black Lung Benefits Act amendments contained in the 

ACA (ACA § 1556; 30 U.S.C. §§ 921(c)(4), 932(l)) should either not be applied 

in claims or that the claims should be held in abeyance pending other federal court 

litigation over the validity of the ACA.

Case Name: Peabody Energy Corporation/Arch Resources, Inc. Litigation 

Venue: Benefits Review Board, Office of Administrative Law Judges, and Office of 

Workers’ Compensation Programs district offices

Issue: Whether Peabody Energy and Arch Resources are liable for black lung benefits in 

cases in which miners last worked for coal companies when they were owned and 

self-insured by Peabody Energy or Arch, before they were sold to Patriot Coal. 
TAB 2: State of Play

29

Energy Employees Occupational Illness Compensation Program Act

Case Name: Act for Health v. DOL 

Venue: U.S. District Court for the District of Colorado

Issue: Plaintiff seeks to enjoin the 2019 Final Rule updating the 2007 regulations 

implementing the Energy Employees Occupational Illness Compensation 

Program Act by challenging five particular regulatory changes made by the Final 

Rule on the ground that they are arbitrary or capricious under the APA.

Wage-Hour Division

Fair Labor Standards Act

Case Name: Employer Solutions Staffing Group, LLC v. Scalia

Venue: Supreme Court

Issue: Employer Solutions Staffing Group filed a petition for certiorari seeking review 

of a Ninth Circuit decision that was favorable to the Department, specifically 

regarding whether the Ninth Circuit’s standard for willfulness conflicts with 

Supreme Court precedent, whether liability under the FLSA requires knowledge 

of the violation by a manager or supervisor, and whether the FLSA allows for 

indemnification or contribution among joint employers.

Case Name: New York, et al. v. Scalia

Venue: Second Circuit [appeal expected to be filed by 11/9/20; decision was from 

SDNY]

Issue: Whether, under the Administrative Procedure Act, the Joint Employer Final Rule 

is contrary to the FLSA and is arbitrary and capricious, and as a threshold matter, 

whether the plaintiffs have standing to challenge the final rule.

Case Name: Department of Labor v. Five Star Automatic Fire Protection

Venue: Fifth Circuit

Issue: Whether the district court correctly concluded that Five Star violated the FLSA’s 

overtime and recordkeeping requirements and determined the amount of back 

wages attributable to unpaid, off-the-clock overtime work, given that the 

Secretary offered sufficient representative testimony and evidence to justly and 

reasonably infer the amount of uncompensated work using the framework 

provided in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), and Five 

Star failed to negate the inferences drawn from this evidence or to prove the 

precise amount that the affected employees worked.

Case Name: Scalia v. Timberline South

Venue: Sixth Circuit

Issue: Whether the district court properly granted summary judgment regarding the 

amount of back wages due for unpaid overtime work in accordance with the 

framework set forth in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 
TAB 2: State of Play

30

(1946), where Timberline South failed to document any commute time or bona 

fide meal break time in its payroll records of hours worked, where the Secretary 

relied on Timberline’s own payroll records to establish as a just and reasonable 

inference the amount of uncompensated overtime hours worked and back pay due, 

and where Timberline failed to establish a genuine issue of material fact by 

coming forward with either “evidence of the precise amount” of non-compensable 

commuting time and/or bona fide meal breaks which were allegedly taken or 

other evidence to negate the reasonableness of the Secretary’s estimates of the 

amount of uncompensated overtime work for each of Timberline’s 50 employees 

who performed uncompensated overtime work.

Case Name: Scalia v. Arizona Logistics, Inc.

Venue: Ninth Circuit

Issue: Whether the district court correctly concluded that, based on Supreme Court 

precedent, the Secretary of Labor may not be compelled to arbitrate an

enforcement action authorized under the FLSA that was brought on behalf of 

workers who entered into individual private arbitration agreements.

Case Name: Scalia v. Wellfleet Communications, LLC

Venue: Ninth Circuit

Issue: The defendant-appellant’s opening brief in this case is due January 26, 2021, but 

the issues likely to be appealed are whether the district court correctly concluded 

that the employer’s call center workers were employees under the FLSA, that 

their violations were willful and thus a three-year statute of limitations should 

apply, and that liquidated damages were properly awarded.

Case Name: Scalia v. East Penn Manufacturing Co.

Venue: U.S. District Court for the Eastern District of Pennsylvania 

Issue: Whether the employer, a large battery manufacturer, is liable for more than $150 

million in back wages and liquidated damages, failed to pay workers for all time 

spent on pre-shift activities, including changing into a required uniform and other 

PPE, and for all time spent on post-shift activities, including changing out of work 

clothes and showering. 

Case Name: Scalia v. Comprehensive Healthcare Management Services, LLC., et al.

Venue: U.S. District Court for the Western District of Pennsylvania

Issue: Whether the employer, which operates a network of nursing and rehabilitation 

long-term care facilities, is liable for almost $30 million in back wages and 

liquidated damages, for violating the FLSA in a variety of ways: failing to pay 

some employees any compensation for overtime hours worked, failing to pay all 

employees for any hours worked outside their pre-determined schedules, failing to 

pay for interrupted lunch breaks, failing to pay the correct overtime rates by 

failing to include “shift differentials” and bonuses in the “regular rate” when 

calculating overtime payments, failing to combine hours worked at multiple 

facilities for overtime purposes, and simply paying straight time for overtime. 
TAB 2: State of Play

31

Case Name: Perez v. Holland Acquisitions

Venue: United States District Court for the Western District of Pennsylvania

Issue: Whether the employer is liable for more than $40 million in back wages and 

liquidated damages by misclassifying workers as independent contractors 

performing title searches for the oil and gas fracking industry in Pennsylvania, 

Ohio, and West Virginia, resulting in overtime violations. 

Case Name: Secretary v. ProCorp, LLC

Venue: U.S. District Court, Eastern District of Michigan, Detroit Division

Issue: Whether staffing company is liable for back wages and liquidated damages of 

more than $2 million by misclassifying more than 360 drivers as independent 

contractors, resulting in overtime violations. 

Case Name: KDE Equine LLC and Steve Asmussin

Venue: U.S. District Court, Western District of Kentucky

Issue: After the court, in a bifurcated litigation, found defendants, a horse training 

company and its owner with staffs at several major racetracks, violated overtime 

and recordkeeping provisions of the FLSA, the issue of the amount of back wages 

and liquidated damages remains.

Case Name: Scalia v. Sarene Services, Inc. d/b/a Serene Home Nursing Agency

Venue: U.S. District Court for the Eastern District of New York 

Issue: Whether defendant, a home care agency, failed to pay its home health aides for all 

hours worked in violation of minimum wage and overtime requirements, and 

failed to keep accurate records of aides’ actual work hours. 

Case Name: Scalia v. Jani-King of Oklahoma, Inc. 

Venue: United States District Court for the Western District of Oklahoma 

Issue: Whether defendant, a janitorial services franchisor, should be enjoined from 

violating the FLSA record-keeping provisions because it misclassifies its 

employees as independent contractors. 

Case Name: Scalia v. Paragon Contractors Corp. and Brian Jessop (contempt) 

Scalia v. Fundamentalist Church of Jesus Christ of Latter-Day Saint (FLDS), Lyle 

Jeffs and Dale Barlow (injunctive relief and back wages) 

 Administrator v. Paragon, Brian Jessop, and Dale Barlow (civil money penalties) 

Venue: United States District Court, District of Utah (contempt and injunction) 

 DOL Office of Administrative Law Judges 

Issue: Whether, following the District Court’s order affirmed by the 10th Circuit, that 

Paragon and Jessop are in contempt of an injunction and liable for back wages 

under child labor provisions of the FLSA for using children to harvest pecans. 

Case Name: Scalia v. Diligent Delivery Systems

Venue: U.S. District Court of Arizona
TAB 2: State of Play

32

Issue: Whether defendants are liable for $30 million in back wages by failing to pay 

minimum wage and overtime for delivery drivers who were classified as 

independent contractors and used their own vehicles to make deliveries. 

Case Name: Scalia v. Valley Wide Plastering

Venue: U.S. District Court of Arizona

Issue: Whether defendant, a drywall and plastering company, and its owners are liable 

for about $9 million in back wages for failing to pay overtime.

Case Name: Scalia v. KP Poultry 

Venue: U.S. District Court for the Central District of California

Issue: Whether defendants and their respective owners, whose workers were paid a piece 

rate in poultry processing, violated the FLSA for failure to pay minimum wage 

and overtime; and whether defendants have spoliated video evidence, coerced 

witnesses, and attempted to induce witnesses to lie during depositions. 

Case Name: Scalia v. Unforgettable Coatings, Inc. and Corey Summerhays

Venue: U.S District Court of Nevada

Issue: Whether employer and its owner failed to pay overtime to commercial and 

residential painters by using a pay practice that involved discretionary bonuses 

instead of overtime; and whether defendants retaliated by firing several 

employees who cooperated in the government’s investigation or complained 

about their pay. 

Prevailing Wages - Davis-Bacon and Related Acts/Service Contract Act

Case Name: Nevada Chapter of the Associated General Contractors of America, Inc., et al. v. 

WHD

Venue: DOL Administrative Review Board

Issue: Whether the Administrator complied with the Davis-Bacon Act when she 

established certain prevailing wage rates for highway construction in Nevada 

based on statewide data that WHD collected through its own survey process rather 

than on county-specific wage data collected by the state of Nevada under its own 

prevailing wage law.

Case Name: Whiting-Turner/Walsh Joint Venture v. WHD

Venue: DOL Administrative Review Board

Issue: Whether certain asbestos abatement work fell within the skilled laborer rather 

than the general laborer classification on a Davis-Bacon Act wage determination, 

even though WHD did not conduct a local area practice survey to determine 

which classification predominantly performed the work in question; and whether 

the ALJ’s decision should be vacated under the Appointments Clause.

Case Name: District Council of Iron Workers of California v. WHD 

Venue: DOL Administrative Review Board 
TAB 2: State of Play

33

Issue: Whether the Administrator complied with the Davis-Bacon Act by reasonably 

exercising her discretion when she declined to include a general classification of 

“Ironworker” on certain residential construction wage determinations on the 

ground that the wage survey reflected three distinct ironworker classifications: 

structural, reinforcing, and ornamental ironworkers.

Family and Medical Leave Act

Case Name: Ziccarelli v. Dart

Venue: Seventh Circuit

Issue: Whether an employee pursuing a claim of interference with FMLA rights must 

present evidence that the employer “denied” FMLA benefits to which the 

employee was entitled, or merely “interfered with” those benefits.

Case Name: Scalia v. State of Alaska, Department of Transportation and Public Facilities

Venue: Ninth Circuit

Issue: Whether the district court correctly concluded that FMLA prohibits an employer 

from counting weeks that an employee is not scheduled to work as FMLA leave.

Enforcement of Immigration and Nationality Act/Temporary Foreign Workers, H-2A 

(Agricultural), H-2B (Nonagricultural), and H-1B (Technical), and U and T Visa 

Certification Program

Case Name: Scalia v. Overdevest Nurseries

Venue: D.C. Circuit

Issue: Whether DOL’s 2010 H-2A “corresponding employment” rule is entitled to 

Chevron deference; and whether DOL properly concluded that the employer

violated the H-2A program’s requirements by having its domestic production 

workers engaged in corresponding employment with its H-2A order pullers, 

without paying the domestic production workers the requisite Adverse Effect 

Wage Rate.

Case Name: USA v. Bedi and Datalink Computer Systems

Venue: Second Circuit

Issue: Whether, in a case brought by the Department under the Federal Debt Collection 

Procedures Act (FDCPA) to recover a $340,987.43 back wage award in an H-1B 

administrative enforcement matter, the award was subject to the FDCPA because 

it was a “debt owing to the United States” and whether the equitable principle of 

in pari delicto prevents the Department from recovering back wages on H-1B 

employee’s behalf even though she and the employer participated in a criminal 

conspiracy to defraud a customer during her employment.
TAB 2: State of Play

34

Case Name: Outdoor Amusements Business Association v. DHS and DOL

Venue: Fourth Circuit

Issue: Whether the Department has the authority to issue H-2B labor certifications and 

to issue rules related to H-2B certifications and the enforcement of the H-2B 

program. 

Case Name: New Orleans Workers’ Center for Racial Justice v. U.S. Dep’t of Labor

Venue: D.C. District Court

Issue: Whether, under the Administrative Procedure Act, WHD’s July 1, 2019, Field 

Assistance Bulletin (“FAB”) regarding certification of U- and T-visas was a 

legislative rulemaking that required notice and comment; and whether the new 

protocols in the FAB are arbitrary and capricious.

Case Name: Southern Illinois University School of Medicine v. Dep’t of Labor

Venue: Central District of Illinois

Issue: Whether the medical school is permitted to pay a physician an “actual wage” that 

is less than other physicians because she was less productive in her clinical work 

than they were; and whether other physicians were not comparable to the H-1B 

doctor because her subspecialty, bariatric surgery, differed from theirs. 

Case Name: Administrator v. Azzano Farms & WAFLA 

Venue: DOL Administrative Review Board

Issue: Whether an agricultural association that files a master application as a joint 

employer with its members is a joint employer responsible for compliance with all 

terms and conditions of H-2A employment and subject to the assessment of civil 

money penalties as a matter of law, regardless of whether the association is a joint 

employer under the common law of agency. 

Case Name: Administrator v. CTO/CFH Partnership d/b/a Cider Hill Farm

Venue: DOL Administrative Review Board

Issue: Whether the Department’s H-2A corresponding employment requirements apply 

only to U.S. workers.

Case Name: Administrator v. Frank’s Nursery

Venue: DOL Administrative Review Board

Issue: Whether an employer’s imposition of a mandatory drug testing policy that it did 

not disclose in its job order was a violation of the Department’s regulations 

implementing the H–2A program, which require potential H–2A employers to 

affirmatively identify all material conditions of employment in the job order.

Case Name: Administrator v. Graham and Rollins, Inc.

Venue: DOL Administrative Review Board

Issue: Whether enforcement actions seeking recovery of H-2B back wages are governed 

by the civil money penalty statute of limitations set forth in 28 U.S.C. 2462.
TAB 2: State of Play

35

Case Name: Manoharan v. HCL America, Inc. 

Venue: DOL Administrative Review Board

Issue: Whether an H-1B complainant may serve as the prosecuting party at an ALJ

hearing to argue that the Administrator’s award of back wages to him was too 

low, or whether the only party permitted to be a prosecuting party at such a 

hearing is the Administrator.

Case Name: Administrator v. Broadgate, Inc. and Administrator v. Spate Business Solutions

Venue: DOL Administrative Review Board

Issue: Whether WHD District Directors have authority to issue determination letters on 

behalf of the Administrator in H-1B enforcement matters.

Case Name: Administrator v. Ten West Cattle, Inc.

Venue: Office of Administrative Law Judges

Issue: Whether J-1 visa holders may be engaged in corresponding employment under H2A.

Case Name: Administrator v. Dune Resorts LLC d/b/a Dune Resorts

Venue: Office of Administrative Law Judges

Issue: Whether a hotel management company substantially violated the H-2B 

regulations by, inter alia, failing to recruit U.S. Workers when instead of hiring 

back its longstanding seasonal U.S. workforce it chose to replace them with H-2B 

workers, resulting in the assessment of make-whole relief to 40 former U.S. 

workers, civil money penalties, and debarment. 

Case Name: In the Matter of Advanced Welding Solutions LLC (AWS) 

Venue: Office of Administrative Law Judges 

Issue: Whether AWS violated the H-2B provisions of the Immigration and Nationality 

Act when it failed to hire qualified U.S. workers, misrepresented its temporary 

need for foreign workers, and failed to post notice of workers’ rights. 

Office of Assistant Secretary for Administrative and Management & FOIA Litigation

FOIA & Information Law

Case Name: Center for Investigative Reporting and Will Evans v. DOL

 Synopsys, Inc. v. DOL 

Venue: U.S. Court of Appeals for the Ninth Circuit

Issue: Two related appeals by a federal contractor, concerning the District Court for the 

Northern District of California’s holding that OFCCP form EEO-1, Type 2 

consolidated reports submitted by certain federal contractors are not exempt from 

disclosure under FOIA exemption 4 as confidential commercial information. The 

first case concerns whether the contractor can intervene, post ruling, to appeal the 

District Court’s holding. The second appeal challenges the District Court’s 

dismissal of the submitter’s APA “reverse FOIA” action seeking to enjoin DOL 
TAB 2: State of Play

36

from complying with the District Court’s order to release its EEO-1, Type 2 

report.

Case Name: Democracy Forward Foundation v. DOL 

Venue: U.S. District Court for the District of Columbia

Issue: FOIA lawsuit seeking records of communications related to the DOL’s 

administrative enforcement action against Oracle, Inc. as well as communications 

related to a 2018 Directive, 2019 Memo, and the 2019 decision in the Analogic

case, a closed OFCCP enforcement matter. 

Case Name: Washington Blade, et al. v. DOL

Venue: U.S. District Court for the District of Columbia

Issue: FOIA action seeking emails from certain OFCCP officials, which include the 

words “religion” or “religious.”

Case Name: Democracy Forward v. DOL

Venue: U.S. District Court for the District of Columbia

Issue: FOIA action seeks records concerning DOL’s program for certification of 

cooperating witnesses applying for U or T visas. 

Case Name: American Oversight v. DOL & DOJ 

Venue: U.S. District Court for the District of Columbia

Issue: FOIA lawsuit seeking records from DOL and DOJ concerning communications 

with and about casino business owner Steve Wynn regarding the Wage Hour 

Division’s tip pooling rule. 

Case Name: State of NY v. DOL 

Venue: U.S. District Court for the Southern District of New York

Issue: FOIA lawsuit seeking records concerning the implementation of the Wage Hour 

Division’s Payroll Audit Independent Determination (PAID) program. 

Case Name: Public Citizen v. DOL (Meatpacking COVID-19)

Venue: U.S. District Court for the District of Columbia

Issue: FOIA lawsuit seeking records concerning COVID-19 safety and health issues in 

meat and poultry processing facilities. Specifically, the request seeks 

communications between DOL and specific facilities and industry groups, 

communications between DOL and USDA, records concerning an enforcement 

policy memorandum issued by SOL and OSHA, and records concerning the 

applicability of state law to meat, poultry, and pork processing facilities in 

connection with COVID-19.

 

Case Name: Public Citizen, Inc. v. DOL (OSHA 300A Data)

 Center for Investigative Reporting & Jennifer Golan v. DOL (OSHA 300A Data)

 Center for Investigative Reporting & Will Evans v. DOL (Amazon OSHA 300A 

Data)

Venue: U.S. District Court for the District of Columbia
TAB 2: State of Play

37

 U.S. District Court for the Northern District of California

Issue: Three related FOIA lawsuits seeking company injury and illness data maintained 

on OSHA 300A forms and submitted to OSHA. All three courts ruled that the 

information was not protected by Exemption 4 of the FOIA, which protects 

confidential commercial information. 

Case Name: Citizens United, et al. v. DOL 

Venue: U.S. District Court for the District of Columbia

Issue: FOIA lawsuit seeking e-mails of former Secretary of Labor Thomas Perez. 

Case Name: American Oversight v. Commerce et al.

Venue: U.S. District Court for the District of Columbia

Issue: FOIA action filed against 14 federal agencies seeking calendar entries maintained 

by certain named political appointees. DOL has completed production and is 

seeking dismissal from the case.

Case Name: American Oversight v. DOL et al.

Venue: U.S. District Court for the District of Columbia

Issue: FOIA action filed against four federal agencies seeking communications between 

White House officials and specific DOL officials.

Case Name: Farm Labor Organizing Committee v. DOL

Venue: U.S. District Court for the District of Columbia

Issue: FOIA lawsuit seeking the identities of tobacco companies who bought tobacco 

from farms that had been found to be in violation of the FLSA or MSPA. 

Case Name: Candling v. DOL

Venue: U.S. District Court for the Northern District of Ohio

Issue: FOIA lawsuit challenging records associated with WHD’s FLSA training material 

are exempt pursuant to FOIA Exemption (b)(7)(E).

Case Name: Public Citizen, Inc. v. DOL (Supplemental Prevailing Wage Determinations) 

Venue: U.S. District Court for the District of Columbia

Issue: FOIA lawsuit seeking records concerning external communications by DOL 

employees and officials concerning supplemental prevailing H-1B wage 

determinations issued by DOL’s National Prevailing Wage Center in 2013.

Employment Law

Case Name: Braswell v. United States 

Venue: U.S. Court of Federal Claims 

Issue: Whether from January 27, 2020, through the present, and ongoing, class members 

(including at least one DOL employee) have performed work with or in close 

proximity to objects, surfaces, and/or individuals infected with COVID-19, and 

are entitled to hazardous duty pay (HDP) and/or environmental differential pay 

(EDP) for exposure in violation of 5 U.S.C. §5545(d) and 5 U.S.C. §5343(c)(4). 
TAB 2: State of Play

38

Class members also claim the overtime provisions of the Fair Labor Standards 

Act, 29 U.S.C. § 207, were violated as HDP/EDP should have been included in 

the calculation of any overtime rates. 

Case Name: Martin v. United States

Venue: U.S. Court of Federal Claims

Issue: Whether federal employees, including DOL employees, who worked during the 

October 2013 government shutdown are entitled to liquidated damages under the 

Fair Labor Standards Act because of their delayed pay. The court has found that 

FLSA violations occurred and that the federal government is liable for liquidated 

damages, the remaining issue is the amount of liquidated damages due.

Case Name: Dallas Prater v. Scalia 

Venue: U.S. District Court for the Southern District of West Virginia

Issue: Whether MSHA discriminated against the plaintiff based on his having cerebral 

palsy when it terminated him during his probationary period in December 2013 

for poor performance. Plaintiff seeks back pay (estimated at $360,000), nonpecuniary damages, and reinstatement. The jury trial is scheduled to begin on 

11/17/2020, with the final settlement conference to take place on 11/13/2020.

Procurement Law

Case Name: 4K Global-ACC Joint Venture LLC v. Department of Labor

Venue: Civilian Board of Contract Appeals

Issue: Whether the Employment and Training Administration and the Office of the 

Assistant Secretary for Administration and Management erred under federal 

procurement law in December 2019 by terminating for default the plaintiff’s 2017 

$60 million contract to construct an Atlanta Job Corps Center. The plaintiff is 

also appealing denial of subsequently-filed contract claims for additional millions 

of dollars.
TAB 2: State of Play

39

Key Agency Stakeholders

Department of Justice and U.S. Attorneys

Unlike many departments, SOL has primary litigation authority in many of its programs. DOJ 

and the U.S. Attorneys, however, handle certain matters such as defensive litigation and criminal 

cases.

Office of the Solicitor General (SG) – Department of Justice

The SG must approve most amicus briefs filed by DOL in the federal courts of appeals. The SG 

usually files briefs himself or herself in the Supreme Court with varying amounts of DOL 

assistance. In cases where SOL has independent litigating authority, the SG must approve the 

decision to appeal an adverse district court decision and the decision to file for rehearing en banc

in the federal courts of appeal. The SG makes the decision whether to file a petition for certiorari 

with the U.S. Supreme Court on behalf of DOL, and handles all litigation before that Court with 

support from SOL.

Continuing legal education (CLE) providers

CLE providers ask SOL officials to speak at events about the state of play at DOL. Such 

providers include The American Bar Association, including the Labor and Employment Section 

(and the Occupational Safety and Health Law Committee); the National Employment Lawyers 

Association and its state affiliates, which represents plaintiff’s employment lawyers; the AFLCIO Lawyers Coordinating Committee; the Practicing Law Institute; and the labor and 

employment bar – attorneys representing employees, management, unions and others, who, 

sometimes represented by the CLE groups mentioned above, request the Department’s 

participation as amicus curiae in litigation. 

Office of Management and Budget (OMB)

SOL’s Office of Legal Counsel serves as the liaison with the Office of Management and Budget 

(OMB) in the inter-agency review of legislative matters under OMB Circular A-19. 

Office of Government Ethics (OGE)

OGE oversees the executive branch ethics program. SOL’s Office of Legal Counsel ensures that 

the Department’s ethics program complies with OGE regulatory requirements, including 

coordinating with OGE on clearing Presidentially-appointed/Senate-confirmed nominees for the 

confirmation process. 
TAB 3: Calendar

40

TAB 3: CALENDAR

Event Date

FOIA data is posted for the Third Quarter July 30, 2020

Draft annual FOIA Report due to DOJ and OMB for clearance November 16, 

2020

Chief FOIA Officer Report is submitted to OIP for review and clearance January 11, 

2021

FOIA data is posted for First Quarter January 29, 

2021

Readable version of annual FOIA report must be posted on FOIA website March 1, 2021

Chief FOIA Officer Report is posted online March 15, 2021

FOIA data is posted for Second Quarter April 30, 2021

Annual public financial disclosure documents (Form 278) must be filed 

with OLC

May 15, 2021

SOL must submit annual safety and health report May 21, 2021

SOL must certify all annual public disclosure reports July 17, 2021

FOIA data is posted for the Fourth Quarter October 29, 

2021
TAB 4: Budget

41

TAB 4: BUDGET

BUDGET AUTHORITY AND FTE SUMMARY

FY 2017

Enacted

FY 2018

Enacted

FY 2019

Enacted

FY 2020

Enacted

FY 2021

Request

Budget 

Authority2

$133.8 $133.0 $132.9 $131.7 $138.8

FTE3 624 597 599 576 600

At-A-Glance

• SOL is funded through three direct sources: the Departmental Management general fund, 

the Black Lung Disability Trust Fund (BLDTF) and the Unemployment Trust Fund 

(UTF). The general fund is the largest funding. In FY 2020, SOL was appropriated 

$123.7 million from this fund, $7.6 million from the BLDTF (after sequestration), and 

$0.3 million from the UTF, for a total of $131.7 million.

• The head table and subsequent graphs only include reflect SOL’s direct funding and FTE. 

• In addition to its direct funding, SOL provides legal services to client agencies through 

reimbursable authority agreements with the Office of Workers’ Compensation Programs 

and the Wage and Hour Division. 

• SOL’s appropriated funding has basically been flat or decreased from FY 2012 to the 

present. After a substantial decrease in appropriated funding from FY 2012 to FY 2013, 

SOL has received basically flat funding of approximately $130 million to $133 million 

each year since FY 2013. Because operational costs, and particularly personnel costs 

have increased each year, and since 75% of SOL’s costs are for personnel, this flat or 

diminished funding has meant that SOL’s ability to have staff to provide legal services 

has diminished.

Budget and FTE Trends

• SOL’s direct budget authority has dropped from $137.8 million in FY 2012 to $131.7 

million in FY 2020. 

• SOL’s total FTE levels have dropped significantly since FY 2012. The agency reached a 

peak of 693 FTE in FY 2013 and will end FY 2020 with 576 FTE. 

• In FY 2012, the agency received a program increase of $10.0 million. The report 

language specified that the increase was included to support legal services related to a 

backlog of MSHA cases at the FMSHRC.

• Over the FY 2012-FY 2020 time period, most agencies to which SOL provides legal 

services also had budget increases, increasing the amount of legal services those client 

agencies required. 

• To address SOL’s funding needs, the Department reprogrammed funds in FY 2017, FY 

2018, and FY 2020.

• In FY 2020, SOL received a reprogramming in the amount of $2.2 million to address the 

higher workload due to the implementation of USMCA and to provide increased legal 

 2 Enacted funding does not include transfers or reprogrammings. 3 Actual FTE for appropriated funds only. FY 2020 reflects estimated FTE use. FY 2021 reflect President’s Request. 
TAB 4: Budget

42

services to meet operating costs in FY 2020. SOL also received permission to receive 

reimbursements of up to $8 million from the INA Fraud Funds to meet the workload for 

legal services relevant to that fund. 

• In FY 2020, SOL also received $1.0 million in COVID-19 supplemental funding, which 

is available through FY 2022. The additional funding will be used for legal services 

related to the new requirements in the laws as a result of COVID. Since March 2020, 

SOL has been performing COVID-19 legal services at significantly higher levels than the 

amount of this supplemental funding. 

Upcoming Issues

• There is significant uncertainty around fees related to immigration. Any reductions in 

these fees will have a significant negative impact on SOL’s operations. 

• Based on initial House markup, it appears that SOL may receive a flat appropriations for 

FY 2021 at approximately $131.7M, which is approximately level with FY 2017. With 

increased costs for personnel for pay and benefits in recent years, SOL will have 

significant issues operating at this level. 
TAB 4: Budget

43

FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 FY 2017 FY 2018 FY 2019 FY 2020 FY 2021

PB

Request $140.7 $139.1 $135.9 $140.1 $148.0 $148.8 $135.4 $133.1 $136.5 $138.8

Enacted $137.8 $129.9 $132.7 $133.8 $132.8 $133.0 $132.9 $131.7 $131.7

$120

$125

$130

$135

$140

$145

$150

$155

SOL

Request vs. Enacted, FY 2012-FY 2021 Request

(Dollars in millions)

FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 FY 2017 FY 2018 FY 2019 FY 2020

Enacted $137.8 $129.9 $132.7 $133.8 $132.8 $133.0 $132.9 $131.7 $131.7

Inflation Adjusted $137.8 $139.8 $142.1 $142.2 $144.1 $147.1 $150.6 $153.4

$115

$120

$125

$130

$135

$140

$145

$150

$155

$160

SOL

Inflation Adjusted BA vs. Enacted BA FY 2012-2020

(Dollars in millions)
TAB 4: Budget

44

FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 FY 2017 FY 2018 FY 2019 FY 2020

Enacted $137.8 $129.9 $132.7 $133.8 $132.8 $133.0 $132.9 $131.7 $131.7

Obligations $137.3 $129.7 $132.7 $133.7 $132.7 $133.0 $132.7 $131.7

$124

$126

$128

$130

$132

$134

$136

$138

$140

SOL

Budget Authority vs. Obligations, FY 2012-FY 2020

(Dollars in millions)
TAB 5: Agency Performance

45

TAB 5: AGENCY PERFORMANCE

SOL provides legal support to all agencies in the department. SOL uses a variety of measures 

that track workload, including pre-litigation matters, litigation matters, opinion/advice matters 

and regulatory matters. Matters are anything for which SOL has a demonstrated responsibility 

for providing legal services and which is referred from any source for possible action. SOL is an 

agency which provides legal services to its clients – other DOL agencies – and as such, SOL 

does the work it is given. The trend towards more pre-litigation matters and fewer litigation 

matters may be the result of the Solicitor’s emphasis on proactive assistance by SOL in all 

phases of an enforcement investigation, also known as “early and often” intervention. 
TAB 5: Agency Performance

46

Note: The FY 2013 spike in Opinion/Advice Matters is due to a mass transfer of workers’ 

compensation cases from the U.S. Postal Service. You can see an uptick in concluded matters in 

the subsequent years and as FY 2016 comes to a close, nearly all the USPS matters that came in 

in FY 2013 are closed.