Legal

Ask a Lawyer and Get Answers to Your Legal Questions

Ask a Lawyer,
Get an Answer ASAP!

Legal

Why would an Administrative Law Judge for the DOJ apply precedent

Customer Question
from the circuit court of...
Why would an Administrative Law Judge for the DOJ apply precedent from the circuit court of appeals when it conflicts with the ARB's opinion in a SOX case? The ARB is the next step for an appeal. With SOX cases, if it goes to the circuit court, it will be de novo, and will not scrutinize the ALJ's rulings. Also, the secretary of DOJ has stated that ARB precedent is to be followed by DOJ, if I recall. Precedent in question is whether once a Complainant has shown that the protected activity was a contributing factor in an adverse employment action, the employer can still escape judgement if they show that they would have taken the action in the absence of the activity. ARB has said that SOX only requires that the action be a contributing factor and allowing an employer to show it would have taken the action anyway to avoid a judgement amounts to the Complainant having to show the "contributing factor" and then prove that the employers evidence is pretext (an additional burden not in the law). My circuit court disagrees.
Submitted: 4 years ago.Category: Legal
Show More
Show Less
Ask Your Own Legal Question
Answered in 10 hours by:
7/11/2013
Lawyer: Attorney Wayne, Attorney replied 4 years ago
Attorney Wayne
Attorney Wayne, Attorney
Category: Legal
Satisfied Customers: 1,506
Experience: Practicing law since 2000.
Verified
PLEASE DO NOT use the rating system until satisfied. Instead, please click CONTINUE CONVERSATION for more info.

Hello. Thanks for contacting us.

Wow, we don't regularly get questions from people so knowledgeable about federal administrative law. I really appreciate the focus you brought to this!

Of course, I can't read the ALJ's mind or know what his or her analysis shows. But in general, from my experience with federal administrative law, it is not unusual to cite to court opinion in an administrative law proceeding. Circuit courts are a valid source of law -- and the citation would be appropriate (just as a Supreme Court ruling would be). ALJ decisions are not self-referential. If there is, what the judge believes to be a more authoritative interpretation, he or she is supposed to apply the law, not just refer to what the board itself said in prior cases.

But you raise another interesting question: if the ALJ erred in application of the citation, then that would be a decisional error that could be appealed (as any judicial error could be appealed, whether made by an ALJ or a court judge).

If there is a right for a de novo hearing, then the appeal issue is somewhat mooted -- but not irrelevant. Often, in federal cases, there are circuit splits where one circuit disagrees with another's interpretation or application. Its the stuff many lawyers live for (or at least make a living off!) Ultimately, circuit splits remain until the Supreme Court adjudicates (if ever, since, as you know, there are limited number of cases the Supremes will take).

Additionally, while the DoJ may order its regulators and prosecutors to follow a certain procedure, ALJ's are, like judges in court, bound by law and regulation -- not directives from political and policy managers. The basic concept of adjudication in administrative law settings is really no different than that required in court. An ALJ, for the limited purpose of the board's proceedings, is like a judge -- bound by law, not by politics or policy (as other employees are).

I hope this helps frame the issue. If there are internal appeals still available within the administrative adjudicative system, then decisional error is certainly at issue (even if a court will treat the case de novo). Some sort of petition for reconsideration could be one thing to consider, with citation and proof so the ALJ may get a chance to see the error and correct it, for instance. Since each administrative agency has procedural rules of its own, it is important to look closely at that board's procedural rules to see what process might be available for this type of appeal at the ALJ level.

I wish you every success in resolving this matter.
Ask Your Own Legal Question
Customer reply replied 4 years ago

I can appeal to the Admin Review Board from the ALJ. I assume that they will be unlikely to side with the interp of the 4th circuit if it opposes their own interp. This is why it boggles my mind that ALJ would not abide by their interp. And of course, once I appeal to the ARB and get a decision, I cannot file for de novo review in federal court. Is there anyway to find out if this judge is mistaken without asking him in a motion?

Ask Attorney Wayne Your Own Question
Attorney Wayne
Attorney Wayne
Attorney Wayne, Attorney
Category: Legal
Satisfied Customers: 1,506
1,506 Satisfied Customers
Experience: Practicing law since 2000.

Attorney Wayne is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it.

LeeMichigan

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

8,775 satisfied customers

JD, BBA Over 25 years legal and business experience.

Ely

Ely

Counselor at Law

24,353 satisfied customers

Private practice with focus on family, criminal, PI, consumer protection, and business consultation.

INFOLAWYER

INFOLAWYER

Attorney

20,727 satisfied customers

Licensed attorney helping individuals and businesses

JPEsq

JPEsq

Attorney

2,132 satisfied customers

Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor

Law Educator, Esq.

Law Educator, Esq.

Attorney

42,358 satisfied customers

JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law

Ellen

Ellen

Lawyer, Consultant

8,238 satisfied customers

25 years of experience helping people like you.

Guillermo J. Senmartin, Esq.

Guillermo J. Senmartin, Esq.

Attorney

292 satisfied customers

7+ years of experience handling various legal matters.

< Previous | Next >

Related Legal Questions
I am appealing a restraining order in Oregon's Circuit Court
I am appealing a restraining order in Oregon's Circuit Court Tomorrow, and need to understand the protocol at such a proceeding. … read more
Nisha Jones, Esq.
Nisha Jones, Esq.
Juris Doctorate
1,778 satisfied customers
Federal court. If judge issued an Order for a case status
Second opinion] Federal court. If judge issued an Order for a case status report "no later than 7 days" from 12/27/2017, what is the latest possible date and hour to respond? And what happens if that … read more
Amadeo Rivera
Amadeo Rivera
JD
82 satisfied customers
I want to file a Complaint in Federal court against the
I want to file a Complaint in Federal court against the Federal Energy Regulatory Commission under the Administrative Procedures Act. The case meets all 4 prongs of the test to determine if the facts … read more
INFOLAWYER
INFOLAWYER
Attorney
Doctoral Degree
20,727 satisfied customers
Can a judge adjudicate a litigation between someone who is
can a judge adjudicate a litigation between someone who is under his supervision and that person's probation officer ? … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,317 satisfied customers
Can a retired circuit court judge in Nashville, Tennessee
Can a retired circuit court judge in Nashville, Tennessee preside over a civil wedding in Aspen,Colorado and sign the marriage certificate? If not are any commits rules that would authorize his author… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,317 satisfied customers
I won a small claim case but lose the trial de novo. Wanted
I won a small claim case but lose the trial de novo … read more
Dwayne B.
Dwayne B.
Juris Doctor
28,688 satisfied customers
I HAVE A CHARGE THAT WAS ADJUDICATED AND DISMISSED, HOWEVER
i HAVE A CHARGE THAT WAS ADJUDICATED AND DISMISSED , HOWEVER THERE IS STILL A RECORD OF THE ARREST AND I WISH TO HAVE IT EXPUNGED. … read more
Zoey, JD
Zoey, JD
Doctoral Degree
181 satisfied customers
When a federal court concludes that it lacks subject-matter
When a federal court concludes that it lacks subject-matter jurisdiction, and then states "the court must dismiss the complaint in its entirety." Do they mean, remand it to state court if it has been … read more
Legal Expert Justin
Legal Expert Justin
Law Degree
229 satisfied customers
Can one circuit court judge overturn another's decision on a
Can one circuit court judge overturn another's decision on a matter already heard … read more
Ray
Ray
Lawyer
Doctoral Degree
30,843 satisfied customers
If a withhold on adjudication for a felony and a conviction
If a withhold on adjudication for a felony and a conviction of a dui misdemeanor would disqualify me in regards ***** ***** TSA fingerprint background check, since I work for the airlines… read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
Doctoral Degree
42,358 satisfied customers
I received a circuit court disposition order in and for
I received a circuit court disposition order in and for browsed county . It says restitution converted to civil lien. I have several questions… read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,298 satisfied customers
Filed motion to stay money judgement in circuit court
filed motion to stay money judgement in circuit court pending appeal refused to rule citing lack of jurisdiction appellate court denied … read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
Doctoral Degree
42,358 satisfied customers
9-22-17 draft ______________ In the 8th Circuit Court of
9-22-17 draft ______________ In the 8th Circuit Court of Cheshire County State of New HampshirePlaintiff, Amy Zuckerman Vs, Defendant, ***** *****COMPLAINTNow comes the Plaintiff, Amy Zuckerman, and f… read more
Ray
Ray
Lawyer
Doctoral Degree
30,843 satisfied customers
When does a circuit court want a "line"? Adding a name or
When does a circuit court want a "line"? Adding a name or fixing an address? Why can't we just submit a revised form? Are there rules for when a line needs to be filed and how to do it?… read more
TJ, Esq.
TJ, Esq.
Juris Doctor (JD)
11,255 satisfied customers
I need to submit a memorandum of appeal to the circuit court
I need to submit a memorandum of appeal to the circuit court opposing a district court judgement. I need help with format of the memorandum for Maryland courts and also maybe some help in writing the … read more
Irwin Law
Irwin Law
Juris Doctor JD
7,089 satisfied customers
Can a federal agency override a Circuit Court order just
Can a federal agency override a Virginia Circuit Court order just because the don't agree with it or feel it was granted with limited background or due diligence?… read more
Ray
Ray
Lawyer
Doctoral Degree
30,843 satisfied customers
What is the process of trial de novo - I have already
What is the process of trial de novo - I have already submitted and filed the Demand for Trial De Novo - what next? … read more
Roger
Roger
Litigation Attorney
Doctoral Degree
26,866 satisfied customers
Does a de novo trial for about a traffic ticket mandate a
Does a de novo trial for about a traffic ticket mandate a new judge hear the matter? Can the Judge who heard the matter the first time be the exact same judge at the de novo trial?… read more
Ray
Ray
Lawyer
Doctoral Degree
30,843 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x