UNPUBLISHED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.

_________________________________________________________________

Remanded with instructions by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Richard Edward Condit, Washington, D.C., for Peti-
tioner. 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 ACCOUNT-
ABILITY PROJECT, Washington, D.C., for Amicus Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

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 Depart-
ment 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 probation-
ary 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.

                    2
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 subse-
quently 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 Imman-
uel 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 Flu-
harty, who told him that he had been called by O'Neal but that
Immanuel should not worry about it because it was no problem. How-
ever, as a result of these incidents, both Mahetta and O'Neal
requested that Immanuel not be sent to unload concrete at their facili-
ties again.

According to Wyoming Concrete President William DiMondi, he
spoke with Fluharty around July 15, 1993 about the possibility of ter-
minating 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). [Flu-
harty] indicated that he has made the decision to bring Lonnie on per-
manent 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 resi-
dent drivers should be forwarded to [Fluharty] for his consideration."

                    3
(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 advertise-
ment for a ready-mix driver in the Delaware State News, which adver-
tisement 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 employ-
ment.

On July 25, 1993, Immanuel attended a Wyoming Concrete com-
pany 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 fel-
low 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 Envi-
ronmental 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 sug-
gested 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

                    4
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 immedi-
ately 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-year-
old 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 disap-
pointment that Immanuel had chosen the company picnic as the time
to express his concerns without first discussing them with manage-
ment. 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 com-
plaints which had been relayed to him by Fluharty. In addition,
DiMondi requested that they put their complaints in writing. Accord-
ing 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 con-
verted 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 fail-
ure to maintain vehicle inspection forms in his truck.

                     5
Following the termination of his employment, Immanuel sent let-
ters and complaints to a number of state and federal agencies, includ-
ing 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. Sev-
eral 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 subpoe-
nas 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 provi-
sion of the Energy Reorganization Act (ERA). See Malpass v. Gen-
eral 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 wit-
nesses to appear on his behalf. Specifically, Immanuel stated that
some of the key witnesses to his case were witnesses that were

                    6
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. Imman-
uel 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 con-
stitutional 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 com-
plaint 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 deci-
sion 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, dismiss-
ing 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-

                    7
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 deci-
sions under the APA). "Substantial evidence consists of `such rele-
vant 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 subpoe-
nas, 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 pre-
siding 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
_________________________________________________________________
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

                    8
an employee who believes that he has been "fired or otherwise dis-
criminated against by any person in violation of subsection (a)" may
apply for review of such firing or alleged discrimination with the Sec-
retary 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 wit-
nesses "for purposes of obtaining information under sections 1314(b)
and (c)." Id. § 1369(a)(2). These provisions, then, authorize the issu-
ance 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
_________________________________________________________________
          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 chap-
          ter.

33 U.S.C. § 1367(a).

                    9
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 hear-
         ings, 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 pro-
ceedings 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 cer-
tain 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
_________________________________________________________________
2 Immanuel also argues that the ALJ's refusal to compel the appearance
of witnesses within the control of Wyoming Concrete violated his proce-
dural 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.

                   10
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). Accord-
ingly, 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

                    11
