                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3081
                        ___________________________

                         Business Communications, Inc.

                             lllllllllllllllllllllPetitioner

                                           v.

 United States Department of Education; Arne Duncan, in his official capacity as
                            Secretary of Education

                           lllllllllllllllllllllRespondents

                                 Brandon Mueller,

                            lllllllllllllllllllllIntervenor
                                   ____________

                      Petition for Review of an Order of the
                             Department of Education
                                  ____________

                            Submitted: March 14, 2013
                             Filed: December 2, 2013
                                  ____________

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
                           ____________

GRUENDER, Circuit Judge.

       Business Communications, Inc. (“BCI”) was awarded contracts to install cable
in the El Dorado and Beebe Arkansas school districts under the American Recovery
and Reinvestment Act (“ARRA”), Pub. L. No. 111-5, 123 Stat. 115 (2009). Branden
Mueller, who worked for BCI on both projects, filed a complaint with the Department
of Education (“DOE”) alleging that BCI had terminated his employment after he
complained about not being paid “prevailing wages” as required by ARRA. The
Secretary of Education (“Secretary”) reviewed a report by the Department of
Education’s Office of the Inspector General (“DOE’s OIG”) and ordered Mueller
reinstated with back pay. BCI petitions for review of the Secretary’s order, arguing
that it was deprived of its Fifth Amendment due process rights because it never was
afforded a hearing, either before or after the Secretary’s decision. Because we find
BCI was deprived of its due process rights, we grant the petition and vacate the
Secretary’s order.

                                           I.

       Congress enacted ARRA as a “stimulus bill” to fund a variety of projects and
thereby encourage economic recovery. The statute imposes several conditions on
contractors working on ARRA-funded projects, including that they pay their workers
the wages “prevailing” among similar workers on similar projects in the region.
ARRA § 1606, 123 Stat. at 303. Through § 1553 of the ARRA, Congress sought to
encourage the reporting of improper action in connection with ARRA projects by
providing whistleblower protections for employees of non-federal employers working
on projects funded by ARRA appropriations. Section 1553 prohibits employers who
receive stimulus funds from discharging, demoting, or otherwise discriminating
against an employee as reprisal for disclosing, among other things, a violation of law,
rule, or regulation related to an agency contract. Id. § 1553(a)(5), 123 Stat. at 297.
A person who believes he or she has been subjected to a prohibited reprisal may
submit a complaint to the appropriate agency’s inspector general. Id. § 1553(b)(1),
123 Stat. at 297. Section 1553 specifies the standards for establishing reprisal against
a whistleblower. “A person alleging reprisal under this section shall be deemed to
have affirmatively established the occurrence of the reprisal if the person

                                          -2-
demonstrates that a disclosure [covered by § 1553(a)] was a contributing factor in the
reprisal.” Id. § 1553(c)(1)(A)(I), 123 Stat. at 299. The complainant may satisfy this
burden through circumstantial evidence, including evidence that the retaliating
employer knew of the disclosure or that the reprisal occurred within a period after the
disclosure such that a reasonable person might conclude that the disclosure had been
a contributing factor in the reprisal. Id. § 1553(c)(1)(A)(ii), 123 Stat. at 299. The
employer, however, has an opportunity for rebuttal, and “[t]he head of an agency may
not find the occurrence of a reprisal . . . if the non-Federal employer demonstrates by
clear and convincing evidence that the non-Federal employer would have taken the
action constituting the reprisal in the absence of disclosure.” Id. § 1553(c)(1)(B), 123
Stat. at 299.

       The agency’s office of the inspector general (here, the DOE’s OIG) has 180
days to investigate the complaint and make a determination whether the complaint is
frivolous or otherwise not actionable and, if not, submit a report to the complainant,
the complainant’s employer, and the head of the federal agency overseeing the
contract.1 Id. § 1553(b)(1)-(2), 123 Stat. at 297-98. Upon receipt of the OIG’s report,
the head of the agency (here, the Secretary) has a non-extendable thirty-day period
to “determine whether there is sufficient basis to conclude that the non-Federal
employer has subjected the complainant to a reprisal prohibited by [§ 1553(a)].” Id.
1553(c)(2), 123 Stat. at 300. If the agency head finds that the employer has engaged
in unlawful reprisal, the agency head “shall” take one or more of three remedial
actions: (1) order the employer to abate the reprisal, id. § 1553(c)(2)(A), 123 Stat. at
300; (2) order the employer to reinstate the complainant and to provide
“compensation (including back pay), compensatory damages, employment benefits,
and other terms and conditions of employment that would apply to the person in that


      1
       The 180 days is extendable by agreement between the inspector general and
the complainant or by the inspector general unilaterally upon written explanation.
ARRA § 1553(b)(2)(B).

                                          -3-
position if reprisal had not been taken,” id. § 1553(c)(2)(B), 123 Stat. at 300; or (3)
order the employer to pay the complainant “an amount equal to the aggregate amount
of all costs and expenses (including attorneys’ fees and expert witnesses’ fees) that
were reasonably incurred” in connection with bringing the complaint, id.
§ 1553(c)(2)(C), 123 Stat. at 300.

        Section 1553 then provides that any person “adversely affected or aggrieved”
by an agency’s order “may obtain review of the order’s conformance with this
subsection, and any regulations issued to carry out this section, in the United States
court of appeals for a circuit in which the reprisal is alleged in the order to have
occurred.” Id. § 1553(c)(5), 123 Stat. at 300. Review in the courts of appeals must
conform to chapter seven of the Administative Procedure Act. Id. If the non-federal
employer does not comply with the agency’s order, the head of the agency is required
to file an action for enforcement of such order in the United States district court in
which the reprisal was found to have occurred in order to compel compliance. Id.
§ 1553(c)(4), 123 Stat. at 300. The district court may “grant appropriate relief,
including injunctive relief, compensatory and exemplary damages, and attorneys fees
and costs.” Id.

       BCI entered into contracts with the DOE under ARRA to install cable in the
El Dorado and Beebe school districts in Arkansas. BCI hired Branden Mueller as a
helper in April 2010, and in November 2010, BCI promoted Mueller to lead
technician. In 2011, Mueller was assigned to work on both the El Dorado and Beebe
projects. Mueller’s employment was terminated in September 2011. In December,
Mueller filed a complaint under § 1553(b) with the DOE’s OIG, claiming that BCI
had fired him for engaging in whistleblowing activity protected under § 1553(a). The
parties do not dispute that Mueller originally was not paid the prevailing wage for
either job, that he was in fact entitled to the prevailing wage, and that he complained




                                         -4-
about being paid less than the prevailing wage.2 The parties do dispute, however,
whether Mueller’s complaints were a contributing factor to the termination of his
employment.

       The DOE’s OIG conducted a six-month investigation into Mueller’s claim that
his complaints about not being paid the prevailing wage on BCI’s ARRA projects
were a contributing factor to the termination of his employment. The DOE’s OIG
conducted interviews with Mueller and eight individuals identified by both Mueller
and BCI and reviewed materials related to Mueller’s dismissal. Mueller reasserted
his allegation that his complaints were a contributing factor to the termination of his
employment. Mueller told the investigators that his immediate supervisor told him
to “be quiet or be unemployed” when Mueller complained about not being paid the
prevailing wage. BCI’s witnesses, including three managers and one co-worker of
Mueller, disputed Mueller’s claims and, specifically, contested whether he was
threatened by his manager to “be quiet or be unemployed.” BCI’s witnesses claimed
Mueller was fired because he was bad for morale, violated company policies, failed
to follow his managers’ orders, and did not complete projects in a timely manner.
Robert Brocchus, III, a former BCI co-worker of Mueller, disputed BCI’s claim,
telling investigators that he never heard anyone complain about Mueller’s attitude on
the job and that Mueller always finished the jobs either before or on the day they were
due. Thomas Creed, another former co-worker, also told investigators that he
believed Mueller was not fired because of morale but rather because of Mueller’s
complaints regarding the prevailing wage.

      The DOE’s OIG report heavily relied on statements made by Mueller and other
witnesses and often rested its conclusions on conflicting witness accounts. For


      2
       In fact, BCI sent him a check for the difference between what Mueller was
paid on the El Dorado project and the prevailing wage in November 2011, and in
April 2012, BCI did the same for Mueller’s wages from the Beebe project.

                                         -5-
example, the OIG found witnesses who contradicted the account of BCI’s
management witnesses to be credible, pointing out that “one manager stated that a
subordinate had complained about Mueller’s attitude and requested not to work with
him again; however, that subordinate contradicted the manager’s statement and said
it was not true.” Additionally, the DOE’s OIG found the testimony of Mueller’s
supervisors regarding the reason he was fired to be unpersuasive and not credible.
Specifically, the DOE’s OIG “did not find credible Mueller’s supervisor’s statement
that Mueller’s attitude had changed after he was promoted to Lead Technician.” The
DOE’s OIG concluded that an impermissible reprisal had occurred and that BCI had
not established by clear and convincing evidence that Mueller would have been
terminated regardless of his complaints. Thus, the DOE’s OIG recommended that
Mueller’s complaint be sustained.

        The DOE’s OIG submitted a redacted version of its report to the DOE, to BCI,
and to Mueller on June 6, 2012. The report did not include the summaries of the
interviews the DOE’s OIG had conducted with certain witnesses because the DOE’s
OIG is forbidden from disclosing such information without a privacy waiver. ARRA,
§ 1553(b)(5), 123 Stat. at 299. On June 13, 2012, BCI’s counsel wrote a one-page
letter notifying the DOE’s OIG of receipt of the report and urging it to reconsider its
conclusions because they “rely on unsubstantiated and self-serving statements by Mr.
Mueller and other employees” and because the “overwhelming evidence reveals that
Mr. Mueller was terminated by BCI for legitimate non-retaliatory reasons.”

       On June 25, 2012, the DOE provided BCI a new copy of the DOE’s OIG
report, as well as summaries of the interviews conducted with all persons from whom
the DOE had obtained a waiver. In a letter accompanying the report, the DOE
formally invited BCI to submit any additional material that might establish through
clear and convincing evidence that Mueller’s complaint was not a contributing factor
to his dismissal. It set a deadline of noon on July 2, 2012 for receipt of this
information. BCI requested an extension of time in which to file its response because

                                         -6-
the DOE’s deadline gave it less than five business days to compile a response. The
DOE declined to provide an extension, explaining that the Secretary was required by
statute to issue a decision within thirty days of receiving the inspector general’s
report. See id. § 1553(c)(2), 123 Stat. at 300. BCI then submitted its response one
day late, on July 3, 2012.

       The Secretary issued his final determination and order on July 6, 2012, which
sustained the conclusions of the DOE’s OIG. The Secretary noted that BCI’s reply
was submitted late, but that “[e]ven if the Department were to consider the evidence
submitted in the late rebuttal, the rebuttal does not provide sufficient evidence to meet
the standard of ‘clear and convincing evidence’ required to rebut a presumption of
prohibited reprisal.” Based solely on Mueller’s complaint, on the redacted version
of the DOE’s OIG report and on BCI’s written rebuttal, which he determined did “not
affect the determination,” the Secretary determined BCI’s contentions were
unsupported by any contemporaneous documentation and were contradicted by the
testimony of other witnesses. Accordingly, under § 1553(c)(2)(A)-(B), the Secretary
ordered BCI to reinstate Mueller with back pay.

      Under § 1554(c)(5), BCI timely petitions for review of the Secretary’s order,
arguing that it was deprived of due process when it was forced to reinstate Mueller
and pay him back pay without the benefit of either a pre- or post-deprivation hearing.
Alternatively, BCI argues that it has demonstrated by clear and convincing evidence
that Mueller would have been fired regardless of his complaints.

                                           II.

      We review a substantive agency decision only to determine if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). Whether an agency action violates the Constitution, however, is



                                          -7-
reviewed de novo. South Dakota v. United States Dep’t of Interior, 665 F.3d 986,
989 (8th Cir. 2012).

       Due process prevents government actors from depriving persons of liberty or
property interests without providing certain safeguards. Mathews v. Eldridge, 424
U.S. 319, 332 (1976). All parties concede that BCI has a constitutionally protected
interest in the funds it would be forced to pay Mueller in back pay, see Dickman v.
Comm’r of Internal Revenue, 465 U.S. 330, 336 (1984), and that BCI has a
constitutionally protected interest in its ability to fire employees, see Brock v.
Roadway Express, Inc., 481 U.S. 252, 260-61 (1987); Chernin v. Lyng, 874 F.2d 501,
506 n.3 (8th Cir. 1989).

       “Once it is determined that due process applies, the question remains what
process is due.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Required
procedures may vary according to the interests at stake, but “[t]he fundamental
requirement of due process is the opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’” Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo,
380 U.S. 545, 552 (1968)). In determining the adequacy of the procedures available
under § 1553, we must consider the governmental interests, the private interests of
those affected by the deprivation, and the risk of erroneous deprivations from the
procedures used and the probable benefit of additional procedural safeguards. Brock,
481 U.S. at 262 (citing Mathews, 424 U.S. at 335). BCI argues § 1553 provides
insufficient protection against the risk of erroneous deprivation because it does not
provide for either a pre- or post-deprivation hearing. In response, the DOE asserts
§ 1553’s procedures provide sufficient process without an administrative hearing
because the opportunity to participate in the investigation of the DOE’s OIG and to
submit a written rebuttal, coupled with prompt judicial review, adequately protects
against the risk of erroneous deprivation.




                                         -8-
      We begin by accepting as substantial the interests of both the DOE and BCI.
The DOE has a substantial interest in encouraging whistleblowers to report improper
conduct by protecting them from retaliatory actions. See Brock, 481 U.S. at 262. The
DOE also has an interest in conserving government resources. See Mathews, 424
U.S. at 335. Similarly, BCI has a strong interest in controlling the makeup of its
workforce and in the funds it might have to pay to the whistleblowers. Brock, 481
U.S. at 263.

       In light of these interests, we now turn to the crucial question of whether the
procedures available to BCI under § 1553 reliably protect against the risk of
erroneous deprivation. The Supreme Court has held, “In almost every setting where
important decisions turn on questions of fact, due process requires an opportunity to
confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254,
269 (1970). The requirements of confrontation and cross-examination are “even more
important where the evidence consists of testimony of individuals whose memory
might be faulty or who, in fact, might be perjurers or persons motivated by malice,
vindictiveness, intolerance, prejudice, or jealousy.” Greene v. McElroy, 360 U.S.
474, 496 (1959). Where, as here, many of the DOE’s reasons for its decision depend
on the credibility of individual witness testimony, cross-examination must be
available to minimize the risk of erroneous deprivation. See id. Thus, an employer
facing monetary loss or other deprivation must at some point “have an opportunity
to be confronted with all adverse evidence and to have the right to cross-examine
available witnesses” in order to satisfy the demands of due process. Nevels v.
Hanlon, 656 F.2d 372, 376 (8th Cir. 1981); see also Brock, 481 U.S. at 266 (resting
its decision to uphold pre-deprivation procedures affording less than an evidentiary
hearing in the context of a similar whistleblowing statute on the availability of cross-
examination in a prompt post-deprivation evidentiary hearing); Cleveland Bd. of
Educ. v. Laudermill, 470 U.S. 532, 545-46 (1985).




                                          -9-
       We reject the DOE’s argument that, without an administrative hearing,
§ 1553’s pre-deprivation procedures, coupled with its provision for judicial review,
provide BCI with sufficient protection against the risk of erroneous deprivation. The
opportunity to participate in the investigation of the DOE’s OIG and submit a written
rebuttal is no substitute for the opportunity to test adverse evidence and cross
examine witnesses during a hearing. “[T]he primary function of the investigator is
not to make credibility determinations, but rather to determine simply whether
reasonable cause exists to believe that the employee has been discharged for engaging
in protected conduct.” Brock, 481 U.S. at 266. Additionally, a written rebuttal does
not permit the fact-finder to assess the credibility of a witness. See id. (holding the
opportunity to cross examine witnesses pre-deprivation is unnecessary where the
statute provided for a post-deprivation hearing, appropriately reserving “[f]inal
assessments of the credibility of supporting witnesses . . . to the administrative law
judge”). Nor does this court’s review provide sufficient protection against the risk
of erroneous deprivation because our review of the Secretary’s decision is limited to
the record compiled by the agency. See Voyageurs Nat. Park Ass’n v. Norton, 381
F.3d 759, 766 (8th Cir. 2004) (“It is well-established that judicial review under the
APA is limited to the administrative record that was before the agency when it made
its decision.”). Where this record is compiled without conducting a hearing,
subsequent consideration of that record cannot obtain the protections a hearing would
afford to BCI. See Greene, 360 U.S. at 497 (“The belief that no safeguard for testing
the value of human statements is comparable to that furnished by cross-examination,
and the conviction that no statement . . . should be used as testimony until it has been
probed and sublimated by that test, has found increasing strength in lengthening
experience.”) (quoting John Henry Wigmore, Evidence § 1367 (3d ed. 1940)).

      For the aforementioned reasons, absent a hearing, the risk of erroneously
depriving BCI of its money and its ability to fire its employees under § 1553 is
substantial. Given this substantial risk of erroneous deprivation, the DOE’s interests
do not justify the total absence of a hearing. The DOE’s interest in protecting

                                         -10-
whistleblowers provides a rationale for not requiring a full evidentiary, pre-
deprivation hearing where there is “‘some kind of hearing’ ensuring an effective
‘initial check against mistaken decisions.’” Brock, 481 U.S. at 261 (quoting
Loudermill, 470 U.S. at 542) (internal quotation marks and citation omitted). In the
post-deprivation context, however, the DOE’s only remaining interest in not
providing a hearing is conserving administrative costs. This interest in conservation
of resources does not trump BCI’s countervailing interest in having an opportunity
to challenge effectively the imposition of sanctions under § 1553(c)(2)(B). See
Goldberg, 397 U.S. at 265-66. Therefore, we conclude that minimum due process for
BCI in this context requires either a pre- or post-deprivation hearing that provides
BCI with the opportunity to confront adverse evidence and cross examine adverse
witnesses.

       We thus proceed to consider whether § 1553 provides for such a hearing. On
its face, § 1553 does not provide for a hearing. Despite claiming that 20 U.S.C.
§ 1234 provides a mechanism for it to conduct a hearing,3 the DOE effectively
concedes that it cannot conduct either a pre- or post-deprivation hearing consistent
with § 1553.4 The DOE argues, however, § 1553 provides sufficient post-

      3
       Section 1234 requires the DOE to establish an Office of Administrative Law
Judges to conduct hearings on certain unrelated matters, as well as “other proceedings
designated by the Secretary.” 20 U.S.C. § 1234(a).
      4
       The DOE recognizes that “the Recovery Act’s whistleblower protection
scheme gives the Secretary no discretion whether to enforce a final determination and
order.” Given the Secretary’s lack of discretion, the DOE explains that any hearing
must take place prior to the expiration of the thirty-day, non-extendable, statutory
period for the Secretary to enter his final order because the Secretary must have an
independent opportunity to decide whether to concur in the decision of the
administrative law judge. ARRA § 1553(c)(2), 123 Stat. at 300. Therefore, the DOE
explains that any hearing conducted would have to occur within the thirty-day period.
While the DOE argues it has the mechanism to conduct a hearing under 20 U.S.C.
§ 1234(a)(4), it concedes it would be “virtually impossible” for it to conduct a hearing

                                         -11-
deprivation due process in two ways, either through the district court or upon remand
from the court of appeals.

       First, the DOE asserts that a district court can provide a post-deprivation
hearing because BCI can assert defenses against an agency enforcement action filed
in the district court. ARRA § 1553(c)(4), 123 Stat. at 300. A section 1553(c)(4)
action for enforcement, however, does not contemplate a hearing on the underlying
merits of the Secretary’s final determination and order. See id. (“In any [enforcement
action], the court may grant appropriate relief, including injunctive relief,
compensatory and exemplary damages, and attorneys fees and costs.”). Even if the
district court could conduct a hearing, the only way BCI could receive this process
would be by refusing to comply with the final order of the Secretary and then waiting
for the Secretary to bring an enforcement action in district court. Id. BCI cannot
initiate an action in the district court but instead must violate the order and wait for
the Secretary to file an enforcement action. Violating the order in the hopes of
receiving due process protections would require BCI to subject itself to exemplary
damages and attorneys’ fees. Id. Due process cannot be conditioned on requiring
BCI to violate an order, exposing itself to statutory sanctions. Cf. Steffel v.
Thompson, 415 U.S. 452, 459 (1974) (“[I]t is not necessary that petitioner first expose
himself to actual arrest or prosecution to be entitled to challenge a statute that he
claims deters the exercise of his constitutional rights.”). Therefore, the fact that the
DOE can enlist the district court to enforce its order only if BCI chooses to violate
the order cannot be sufficient due process. Cf. Goldberg, 397 U.S. at 269 (holding


within the mandated thirty-day period because a final determination from the Office
of Hearings and Appeals, of which the Office of Administrative Law Judges is a
subcomponent, takes anywhere from four months to two years. The concurrence
suggests that the DOE could conduct a hearing during the period when the OIG
investigates the complaint. Post at 15-16. The DOE, however, never argued that it
could conduct a hearing during the investigatory period, and nevertheless, it is
undisputed that BCI did not receive a hearing during the investigatory period.

                                         -12-
due process requires an opportunity to confront and cross examine adverse witnesses
where the evidence supporting an administrative action that injures an individual’s
property right consists of testimony of individuals).

       Second, the DOE argues that BCI receives adequate post-deprivation due
process because it can petition for review in the court of appeals.5 See ARRA
§ 1553(c)(5), 123 Stat. at 300. No mechanism for a hearing—with presentation of
evidence and witnesses—before a court of appeals exists. The DOE admits courts of
appeals are not fact-finders and cannot hear witnesses; it argues, however, the courts
of appeals can remand to the agency for further development of the record. See id.
(providing judicial review shall conform to chapter seven of the Administrative
Procedure Act). The DOE never argues we could remand for a full evidentiary
hearing; it suggests we remand only for “additional investigation or explanation.” In
fact, remand for a hearing would be futile and insufficient to provide due process
because the DOE has correctly recognized it has no authority to change the
Secretary’s final determination and order. See supra n.4; ARRA § 1553(c)(2), 123
Stat. at 300.

      We conclude that BCI’s due process rights were violated because the DOE
never provided BCI a hearing and because the post-deprivation procedures available
under § 1553 do not provide any opportunity for BCI “to confront and cross examine
adverse witnesses,” thereby depriving BCI of an essential element of due process.
See Goldberg, 397 U.S. at 269; Nevels, 656 F.2d at 376. Thus, BCI did not have the



      5
        The cases the DOE cites in support of this position are inapposite. In both
Blitz v. Napolitano, 700 F.3d 733 (4th Cir. 2012) and St. John’s United Church of
Christ v. Chicago, 502 F.3d 616 (7th Cir. 2007), the petitioners were challenging on
appeal the adequacy of judicial review in the absence of district court review—not
whether the statutorily provided agency procedures violated due process. See 700
F.3d at 740-42; 502 F.3d at 628-30.

                                        -13-
opportunity to be heard “at a meaningful time and in a meaningful manner.”
Mathews, 424 U.S. at 333.

                                          III.

      We therefore grant the petition for review and vacate the order of the DOE.



MURPHY, Circuit Judge, concurring.

      I concur with the panel's conclusion that the process provided to BCI did not
meet the minimum requirements of due process and that therefore DOE's order should
be vacated. Nevertheless, I write separately to note that the interest of the
government in a case such as this is substantial and that the DOE likely would have
had the ability to conduct a hearing that complied with the requirements of due
process consistent with § 1553.

      The time sensitive nature of the Recovery Act bears on the due process inquiry
here. Due process is a flexible concept that lacks "fixed content." Mathews v.
Eldridge, 424 U.S. 319, 334 (1974). So long as the fundamental requirement of an
opportunity to be heard "at a meaningful time and in meaningful manner" is met, due
process only "calls for such procedural protections as the particular situation
demands." Id. at 333–334 (internal quotation marks omitted) (citations omitted).
Thus, it is not every case in which "a hearing closely approximating a judicial trial is
necessary." See id. at 333.

       Assessing the government's interest requires consideration of the governmental
"function involved." Id. at 334. As the panel correctly states, the government's
interest in protecting whistleblowers is substantial. Supra at 8. It is also significant
that through the Recovery Act the government intended to hasten economic recovery

                                         -14-
by targeted expenditure of certain funds. Congress passed the Act with the statutory
purpose to preserve and create jobs, promote economic recovery, and assist those
most impacted by the recession. ARRA § 3(a), 123 Stat. at 115–16.

       The Congressional desire for prompt action is made evident in the text of the
statute. The Act instructs the executive authorities charged with its enforcement to
commence "expenditures and activities as quickly as possible consistent with prudent
management." Id. § 3(b), 123 Stat. at 116. In a likely attempt to stimulate spending,
Congress also placed sunsets on the availability of certain funding. For example, the
Inspector General received a $14,000,000 increase in funding for "oversight and
audit" of ARRA expenditures, and the statute provides that this sum "shall remain
available through September 30, 2012." Id. tit. VIII, 123 Stat. at 184. The
government thus has a strong interest not only in protecting whistleblowers, but also
in ensuring they are promptly paid what they are due under the Act. This interest
means that extensive procedures should not be required so long as a contracting
company like BCI receives the minimum process required, which includes an
opportunity to cross examine adverse witnesses, see Brock, 481 U.S. at 266.

       The DOE had the statutory authority for the process due in this case. Under 20
U.S.C. § 1234, the DOE's office of ALJs has the ability to conduct "proceedings
designated by the Secretary." 20 U.S.C. § 1234(a)(4). The government contends that
any hearing would have to occur within the 30 day period § 1553 provides for the
Secretary to reach a decision, and that this time frame is insufficient because
according to the DOE, hearings take between four months and two years. Supra at
11 n.4. There has been no articulated reason why a hearing with the opportunity for
presentation of evidence and witnesses could not be held during the time § 1553
allocates for the Inspector General to investigate a complaint.

      Under the statutory scheme the Inspector General is given 180 days to conduct
an investigation and submit a report. Supra at 3. This period may be extended for

                                        -15-
any additional period of time agreed upon by the Inspector General and the
complainant, ARRA § 1553(b)(2)(B)(i), 123 Stat. at 298, or for an additional 180
days by the Inspector General alone, id. § 1553(b)(2)(B)(ii), 123 Stat. at 298. Under
this scheme the Secretary should be able to reach a decision within the 30 day
deadline, as required by § 1553(c)(2). Given the flexibility of due process
requirements and ability of the Inspector General to extend investigations under
§ 1553(b)(2)(B) as the need arises, the DOE would have been able to comply with
§ 1553 while respecting BCI's due process rights.

       While I agree with the panel's conclusion that "BCI's due process rights were
violated because the DOE never provided BCI a hearing," I cannot agree with the
summary statement that the procedures available under § 1553 would not have
allowed the DOE to provide adequate process to BCI, see supra at 13.
                       ______________________________




                                        -16-
