UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HENRY IMMANUEL,

Petitioner,

v.

UNITED STATES DEPARTMENT OF

No. 97-1987

LABOR,

Respondent.

GOVERNMENT ACCOUNTABILITY

PROJECT,

Amicus Curiae.

On Petition for Review of an Order

of the United States Department of Labor.

(96-022-ARB)

Argued: January 29, 1998

Decided: March 24, 1998

Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.

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Remanded with instructions by unpublished per curiam opinion.

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COUNSEL

ARGUED: Richard Edward Condit, Washington, D.C., for Petitioner. Linda Carol Arnold, UNITED STATES DEPARTMENT OF

LABOR, Washington, D.C., for Respondent. ON BRIEF: Marvin

Krislov, Deputy Solicitor for National Operations, Steven J. Mandel,

Associate Solicitor, William J. Stone, Counsel for Appellate Litiga-
tion, UNITED STATES DEPARTMENT OF LABOR, Washington,

D.C., for Respondent. Joanne Royce, GOVERNMENT ACCOUNTABILITY PROJECT, Washington, D.C., for Amicus Curiae.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Petitioner Henry Immanuel seeks review of the final decision and

order of the Administrative Review Board (ARB) of the United States

Department of Labor, denying Immanuel's complaint of unlawful

retaliation in violation of the Water Pollution Control Act (WPCA),

see 33 U.S.C. § 1367(a). The ARB dismissed Immanuel's complaint

upon the recommendation of an administrative law judge (ALJ) who

conducted a hearing on Immanuel's claim. Because the ALJ abused

his discretion when he denied Immanuel's request to compel the

attendance of witnesses within the control of his former employer,

Wyoming Concrete Industries (Wyoming Concrete), we grant

Immanuel's petition for review and remand the case to the Department with instructions to remand the matter to the ALJ for further

proceedings consistent with this opinion.

I.

Immanuel was hired by Wyoming Concrete on June 14, 1993 as a

ready-mix cement truck driver at the company's Blades, Delaware

facility, subject to the successful completion of a sixty-day probationary period. Shortly after beginning work for Wyoming Concrete,

Immanuel became concerned about the improper disposal of waste

water contaminated with cement byproducts and acid, excessive

amounts of oil used by Wyoming Concrete trucks, and spills of motor

oil at the Blades facility. Immanuel discussed these concerns with

Frank Fluharty, the Blades facility manager.

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On July 7, 1993, Immanuel was pouring cement for customer John

Mahetta. Because he could not position his truck properly, Immanuel

needed to use a chute to complete the pour but refused to help carry

the chute, telling the customer that "it was not[his] job." (J.A. 403).

Mahetta got angry with Immanuel because the chute was Wyoming

Concrete's, yet Immanuel refused to help move it. Mahetta subsequently contacted Wyoming Concrete and complained.

On July 13, 1993, at a new construction site, Immanuel poured

concrete that was too thick and piled up, instead of running around

the foundation as it was supposed to. The customer yelled at Immanuel to stop pouring the concrete, telling him it was too thick. Two of

the customer's employees and another Wyoming Concrete driver then

had to shovel the concrete around the foundation before the truck

could be successfully unloaded. The plant manager of the Wyoming

Concrete Federalsburg, Maryland plant was at the site at the time of

the incident and informed Fluharty about Immanuel's unsatisfactory

performance.

On July 22, 1993, Immanuel poured concrete too quickly, causing

the concrete to completely cover customer Fred O'Neal during the

delivery. According to Immanuel, he reported this incident to Fluharty, who told him that he had been called by O'Neal but that

Immanuel should not worry about it because it was no problem. However, as a result of these incidents, both Mahetta and O'Neal

requested that Immanuel not be sent to unload concrete at their facilities again.

According to Wyoming Concrete President William DiMondi, he

spoke with Fluharty around July 15, 1993 about the possibility of terminating Immanuel's employment. In addition, a memorandum from

a ready-mix supervisors' meeting that was held on July 22, 1993

states, "Everybody should know that [Fluharty] has 2 new drivers

hired in the last 30 days (Lonnie Wallace and Henry Immanuel). [Fluharty] indicated that he has made the decision to bring Lonnie on permanent full-time[.] [H]owever, he will be terminating Henry

Immanuel's employment within the next week or two due to customer

complaints. Any applications submitted . . . from any downstate resident drivers should be forwarded to [Fluharty] for his consideration."

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(J.A. 437-38). Immanuel questions the authenticity of this document,

stating that its appearance suggests that it may have been altered.

Although the decision to terminate Immanuel's employment had,

according to Wyoming Concrete, been made, DiMondi decided to

keep Immanuel as a driver until a replacement could be found

because the company was very busy and needed drivers. During this

time, Immanuel was restricted from working for certain clients.

Beginning on July 24, 1993, Wyoming Concrete placed an advertisement for a ready-mix driver in the Delaware State News, which advertisement was intended to find a replacement for Immanuel. Although

the decision to terminate Immanuel's employment had apparently

been made, no Wyoming Concrete representative informed Immanuel

of any performance problems or its intention to terminate his employment.

On July 25, 1993, Immanuel attended a Wyoming Concrete company picnic. While at the picnic, Immanuel distributed a letter he had

prepared listing seven areas of concern to him about the conditions of

employment at Wyoming Concrete. The letter was distributed to fellow employees and addressed to "Fellow Workers." (J.A. 371).

Among the concerns listed were "environmental problems" including

"oil in drums exposed to rain [that] has spilled onto the ground [and]

the cement acid that is used on trucks to clean them[that] goes

directly onto the ground." Id. The letter went on to ask what the Environmental Protection Agency (EPA) would say about the pollution.

Id. In addition, the letter stated concerns about the conditions of the

trucks the drivers drove, the safety of the "loader" at the plant, low

wages, and the lack of sufficient health benefits. The letter then suggested that workers should get a percentage of the company's profit

and ended with the suggestion that the workers unionize. Id.

At some point during the picnic, a copy of the letter was given to

William DiMondi by one of the Wyoming Concrete employees.

Angered, DiMondi waited until the end of the day and approached

Immanuel as he was leaving the picnic with his family. The parties'

accounts of this confrontation differ slightly.

According to Immanuel, DiMondi approached him while he was in

his car with his wife and children, waving the letter and asking in an

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enraged manner what the letter was about. Immanuel responded that

DiMondi should read the letter, to which DiMondi responded that

Immanuel was fired and crumbled up the paper. Immanuel immediately asserted that he had rights and that DiMondi could not fire him

for something like his letter. According to Immanuel, DiMondi then

stated that Immanuel was rehired and that he should report to work

on Monday. Immanuel stated that during this confrontation, he was

very nervous because DiMondi appeared to be in a rage and held his

fist as if he was going to hit Immanuel. Immanuel's wife and 11-yearold daughter corroborated Immanuel's account.

According to DiMondi's explanation of this incident, he

approached Immanuel at the end of the picnic to express his disappointment that Immanuel had chosen the company picnic as the time

to express his concerns without first discussing them with management. DiMondi denied that he fired Immanuel at the time but stated

that when Immanuel told him that he could not be fired because he

had distributed the letter, DiMondi replied that, in fact, he could fire

him.

During the week following the picnic, July 26-30, 1993, DiMondi

contacted Mahetta and O'Neal in order to verify personally the complaints which had been relayed to him by Fluharty. In addition,

DiMondi requested that they put their complaints in writing. According to DiMondi, he feared that Immanuel would initiate litigation

based on his statement that his letter protected him from being fired,

and after consulting with counsel, DiMondi thought it was necessary

to justify the decision to terminate Immanuel's employment with

Wyoming Concrete.

On July 30, 1993, DiMondi and Fluharty met with Immanuel.

Immanuel was invited to discuss his grievances, and Fluharty

reviewed a performance evaluation/status determination form, which

rated Immanuel with respect to personal traits and work performance.

The evaluation form concluded that Immanuel should not be converted from a probationary employee to a full-time employee, and

DiMondi informed Immanuel that he was being terminated for six

reasons, including customer complaints, misrepresentations on his

employment application, his inability to work a full shift, and his failure to maintain vehicle inspection forms in his truck.

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Following the termination of his employment, Immanuel sent letters and complaints to a number of state and federal agencies, including the Delaware Department of Natural Resources and

Environmental Control, the National Labor Relations Board, the

Occupational Safety and Health Administration, and the EPA. On

September 15, 1994, Immanuel was advised by the EPA that he

should report his termination to the Secretary of Labor (Secretary).

The next day, on September 16, 1994, Immanuel submitted a letter of

complaint to the Department of Labor's Wage and Hour Division. In

the letter, Immanuel alleged that he had been discharged in retaliation

for engaging in protected activity in violation of the whistle-blower

provisions of the WPCA.

The Department of Labor subsequently scheduled a hearing on

Immanuel's complaint before an ALJ. On two occasions prior to the

hearing, during February 1995, Immanuel, acting pro se, requested a

number of subpoenas in order to compel certain witnesses to appear

at the hearing on his behalf. In the second request, dated February 14,

1995, Immanuel named the individuals he wished to subpoena. Several of these individuals were employees of Wyoming Concrete,

including management personnel. On March 5 and April 5, 1995,

respectively, the ALJ denied Immanuel's requests, acknowledging

that Immanuel wished to compel certain witnesses to appear at the

hearing but stating that he did not have the authority to issue subpoenas in a proceeding alleging a violation of the WCPA whistle-blower

provision. In ruling on Immanuel's request, the ALJ relied principally

on a Department of Labor ruling in which the Secretary had opined

that under the Administrative Procedure Act (APA), the Secretary and

the ALJ only had the authority to issue subpoenas authorized by law

and that no such authority existed in the employee protection provision of the Energy Reorganization Act (ERA). See Malpass v. General Elec. Co., 1994 WL 897244, at *9 (Dep't of Labor Dec. & Order

March 1, 1994). Although the ALJ recognized that Immanuel sought

relief under the WPCA, not the ERA, he stated that the rationale of

Malpass nevertheless applied with equal force to Immanuel's request.

When the hearing began on May 2, Immanuel, then represented by

counsel, again requested that the ALJ issue subpoenas to compel witnesses to appear on his behalf. Specifically, Immanuel stated that

some of the key witnesses to his case were witnesses that were

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employees of Wyoming Concrete who had knowledge about the

details of his case, particularly when DiMondi decided Immanuel

should be fired, but who were unwilling to testify voluntarily. Immanuel argued that, in their absence, he could not get a fair hearing.

Immanuel also argued that denying him the right to compel certain

witnesses to appear denied him his due process right to a fair hearing

in violation of the United States Constitution. In response, the ALJ

noted that he had already ruled on Immanuel's subpoena requests and

that he had denied those requests on the basis that he did not have the

authority under the WPCA to issue subpoenas. With respect to

Immanuel's constitutional due process argument, the ALJ stated that

he had relied on the Secretary's earlier Malpass decision in denying

Immanuel's request and that Immanuel would have to pursue his constitutional argument before the Secretary.

The hearing then proceeded, and on October 24, 1995, the ALJ

issued his recommended decision and order. The ALJ recommended

the dismissal of Immanuel's claim on the basis that Immanuel's complaint to the Wage and Hour Division was untimely. The ALJ went

on to conclude that even if Immanuel's claim was timely, Wyoming

Concrete had shown by a preponderance of the evidence that the decision to terminate Immanuel's employment was made for legitimate,

non-retaliatory reasons and before Immanuel engaged in protected

activity by distributing his letter at the company picnic.

Immanuel subsequently appealed the ALJ's decision to the ARB.

On May 28, 1997, the ARB issued a final decision and order, dismissing Immanuel's complaint. In its decision, the ARB disagreed with

the ALJ that Immanuel's complaint was untimely but agreed with the

ALJ that, while Immanuel had engaged in protected activity under the

WPCA, he had failed to prove by a preponderance of the evidence

that his termination was caused by his protected activity, rather than

by legitimate business reasons. The ARB declined to decide whether

Immanuel was denied his constitutional due process rights, stating

that it did not have jurisdiction to consider constitutional questions.

Immanuel now petitions for review of the ARB's decision.

II.

We review a decision of the Secretary of Labor for whether it is

supported by substantial evidence and whether it is arbitrary, capri-

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cious, an abuse of discretion, or otherwise not in accordance with the

law. See 5 U.S.C. § 706; Blackburn v. Martin, 982 F.2d 125, 128 (4th

Cir. 1992); Leitman v. McAusland, 934 F.2d 46, 48 (4th Cir. 1991)

(setting forth the standard of review of administrative agency decisions under the APA). "Substantial evidence consists of `such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.'" Blackburn, 982 F.2d at 128; see also Leitman,

934 F.2d at 51. We review questions of law de novo. See Bechtel

Constr. Co. v. Secretary of Labor, 50 F.3d 926, 931 (11th Cir. 1995).

III.

Immanuel first contends that the ALJ erred when he concluded that

he did not have the power to compel certain witnesses to appear on

behalf of Immanuel at the hearing on his complaint. Although we

agree with the ARB that the ALJ did not have the authority to issue

subpoenas to compel the appearance of witnesses, we believe that the

ALJ nevertheless had the authority to compel the appearance of all

witnesses within the control of Wyoming Concrete and that he erred

when he failed to grant Immanuel's request to compel the appearance

of those witnesses.

With respect to whether an ALJ has the authority to issue subpoenas, the APA provides for the issuance of subpoenas in the context

of administrative hearings where "authorized by law." See 5 U.S.C.

§ 555(d) (agency subpoenas "authorized by law shall be issued to a

party on request"); 5 U.S.C. § 556(c)(2) (providing that, subject to

published rules of the agency and within its powers, employees presiding at administrative hearings may issue subpoenas "authorized by

law"). Thus, unless the WPCA specifically provides for the issuance

of subpoenas by administrative hearing officers, the ALJ does not

have the authority to issue them.

The whistle-blower provision of the WPCA is set forth at 33

U.S.C. § 1367(a).1 Subsection (b) of 33 U.S.C. § 1367 provides that

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1 This provision provides:

No person shall fire, or in any other way discriminate against, or

cause to be fired or discriminated against, any employee or any

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an employee who believes that he has been "fired or otherwise discriminated against by any person in violation of subsection (a)" may

apply for review of such firing or alleged discrimination with the Secretary within thirty days of the alleged violation. See 33 U.S.C.

§ 1367(b). Section 1369(a) of Title 33 contains the authorization for

the issuance of subpoenas in the context of administrative procedures

and judicial review. See id. § 1369(a). This provision authorizes the

issuance of subpoenas "[f]or purposes of obtaining information under

section 1315" or "carrying out section 1367(e)." Id. § 1369(a)(1). In

addition, 33 U.S.C. § 1369(a)(2) permits the district courts of the

United States to issue subpoenas for attendance and testimony of witnesses "for purposes of obtaining information under sections 1314(b)

and (c)." Id. § 1369(a)(2). These provisions, then, authorize the issuance of subpoenas for purposes of obtaining information under 33

U.S.C. §§ 1314(b), 1314(c), 1315, and 1367(e). Absent from this

authorization, however, is the authorization to issue subpoenas for

purposes of gathering information under 33 U.S.C.§ 1367(a), the

whistle-blower provision. Thus, while a hearing officer may issue

subpoenas for purposes of certain sections of the WPCA, it appears

that Congress did not intend to authorize the issuance of subpoenas

for purposes of carrying out other sections of the Act, including the

whistle-blower position. See Oliver v. Hydro-Vac Services, Inc., 1998

WL 4304, at *2 (Dep't of Labor Admin. Review Bd. Dec. & Order

Jan. 6, 1998) (holding that there is no subpoena power granted to the

Department under the whistle-blower provision of the WPCA). We,

therefore, agree with the ARB that the ALJ was not authorized to

issue subpoenas to Immanuel to compel the appearance of witnesses

at the hearing on his retaliation claim.

Although the ALJ did not have the authority to issue subpoenas to

require the attendance of witnesses as requested by Immanuel, the

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authorized representative of employees by reason of the fact that

such employee or representative has filed, instituted, or caused

to be filed or instituted any proceeding under this chapter, or has

testified or is about to testify in any proceeding resulting from

the administration or enforcement of the provisions of this chapter.

33 U.S.C. § 1367(a).

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ALJ did have the authority to grant Immanuel's request to compel the

appearance of all those witnesses within the control of Wyoming

Concrete. Department of Labor regulations governing adjudicatory

proceedings before Department ALJs provide:

In any proceeding under this part, the [ALJ] shall have all

powers necessary to the conduct of fair and impartial hearings, including, but not limited to [the power to]:

 . . .

 (3) Compel the production of documents and appearance

of witnesses in control of the parties.

29 C.F.R. 18.29(a) (1997) (emphasis added); see also 29 C.F.R.

§ 18.1(a) (1997) (providing that the rules of practice contained in 29

C.F.R. §§ 18.1-18.59 "are generally applicable to adjudicatory proceedings before the Office of Administrative Law Judges, United

States Department of Labor"). This provision, then, provides clear

authority for the ALJ to compel the appearance of all witnesses in this

case within the control of Wyoming Concrete. Immanuel repeatedly

requested that the ALJ compel the appearance of these witnesses, and

he further explained why he wished to call them as witnesses. While

Immanuel technically requested "subpoenas," the ALJ recognized that

the import of his request was to require that they appear as witnesses

at the hearing, and the ALJ apparently misunderstood the extent of his

authority when he denied Immanuel's request in its entirety. Because

the ALJ misunderstood his authority to compel the appearance of certain witnesses requested by Immanuel, he committed an error of law

and, by definition, abused his discretion. See Koon v. United States,

116 S. Ct. 2035, 2047 (1996).2

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2 Immanuel also argues that the ALJ's refusal to compel the appearance

of witnesses within the control of Wyoming Concrete violated his procedural due process rights under the United States Constitution. Because

we hold that the ALJ erred by denying Immanuel's request to compel the

appearance of these witnesses at his hearing, necessitating a remand, we

need not address Immanuel's alternative argument that the ALJ's failure

to compel witnesses violated his constitutional due process rights.

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IV.

We, therefore, agree with Immanuel that the ALJ erred when he

failed to compel the appearance of witnesses within the control of

Wyoming Concrete as authorized by 29 C.F.R. § 18.29(a)(3). Accordingly, we grant Immanuel's petition for review and remand this case

to the Department with instructions that the matter be remanded to the

ALJ for further proceedings consistent with this opinion.

REMANDED WITH INSTRUCTIONS

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