OFCCP v. Convergys Customer Management Group, Inc. (agency decision, January 31, 2019)

Plain-English summary

The Labor Department's Office of Federal Contract Compliance Programs brought consolidated cases against Convergys under three federal contractor laws. The Board had stayed briefing while the Supreme Court considered whether agency administrative law judges must be appointed under the Constitution's Appointments Clause. After the Supreme Court held in Lucia v. SEC that the SEC's ALJs were subject to that clause and ordered a new hearing before a different judge, the Board ended the stay. It dismissed Convergys's petition for review and sent the cases back to the Office of Administrative Law Judges. A newly assigned ALJ was directed to reconsider the issues in Convergys's exceptions to the prior recommended decision.

Decision snapshot

• Cited authorities: Executive Order 11246; 29 U.S.C. § 793; 38 U.S.C. § 4212; 41 C.F.R. Parts 60-30, 60-741, and 60-250
• Outcome: Petition for review dismissed; consolidated cases remanded for a different ALJ to reconsider the disputed issues.
• Key point: The Supreme Court's Appointments Clause ruling required reconsideration by an ALJ who had not previously decided the cases.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:

  OFFICE OF FEDERAL CONTRACT                                ARB CASE NO. 16-013
  COMPLIANCE PROGRAMS,
  UNITED STATES                                             ALJ CASE NOs. 2015-OFC-002
  DEPARTMENT OF LABOR.                                                    2015-OFC-003
                                                                          2015-OFC-004
                  PLAINTIFF,                                              2015-OFC-005
                                                                          2015-OFC-006
          v.                                                              2015-OFC-007
                                                                          2015-OFC-008
  CONVERGYS CUSTOMER
  MANAGEMENT GROUP, INC.,

                  DEFENDANT                                 DATE: January 31, 2019

  BEFORE:         THE ADMINISTRATIVE REVIEW BOARD


                    ORDER LIFTING STAY AND REMANDING
               THE CASE TO A NEW ADMINISTRATIVE LAW JUDGE

         These consolidated cases arise under Executive Order 11246, as amended;
  Section 503 of the Rehabilitation Act, 29 U.S.C.A. § 793; and Section 402 of the
  Vietnam Era Veterans’ Readjustment Assistance Act, 38 U.S.C.A. § 4212. 1

          By order dated October 10, 2017, the Administrative Review Board (ARB)
  granted the Administrator’s Unopposed Motion to hold the Briefing Schedule in
  Abeyance pending litigation before the U.S. Supreme Court. On January 12, 2018, the
  Court granted review in Raymond J. Lucia Co., Inc., v. S.E.C., 832 F.3d 277 (D.C. Cir.
  2016), to resolve a conflict in the circuit courts of appeals. 2

  1
          These provisions are implemented through 41 C.F.R. Parts 60-30 (Executive Order
  11246), 60-741 (Rehabilitation Act), and 60-250 (Veterans’ Act). The cases were consolidated
  by order issued on September 14, 2017.
  2
          In Bandimere v. S.E.C., 844 F.3d 1168 (10th Cir. 2016) and Burgess v. F.D.I.C., 867 F.3d
  297 (5th Cir. 2017), the courts held that the agencies’ Administrative Law Judges (ALJs) were
  acting as inferior officers without proper appointment as required by Article II, Section 2, Clause
  2 of the U.S. Constitution, the appointments clause. The D.C. Circuit has twice held that the
  Article II does not cover agencies’ ALJs. Raymond J. Lucia Co., Inc., v. S.E.C., 832 F.3d 277
  (D.C. Cir. 2016) and Landry v. F.D.I.C., 204 F.3d 1124 (D.C. Cir. 2000).

USDOL/OALJ REPORTER PAGE 1
 On January 26, 2018, the Administrator filed a motion to lift the stay and remand
the case to Chief Administrative Law Judge Henley. Convergys Custom Management
Group filed an opposition asking that the stay remain until Lucia had been decided and
that any remand go to a different ALJ. The ARB did not address the Administrator’s
motion.

          On June 21, 2018, the Supreme Court decided that ALJs at the Securities and
  Exchange Commission (SEC) are subject to the appointments clause, that the SEC judge
  decided Lucia’s case without a constitutional appointment, that Lucia timely objected,
  and that the appropriate remedy was to hold a new hearing before a different ALJ. The
  Court specified that a properly appointed official cannot be the same ALJ who previously
  decided the case because he “cannot be expected to consider the matter as though he had
  not adjudicated it before.” 3

          Accordingly, the Board dismisses Convergys’ petition for review and remands
  this case to the Office of Administrative Law Judges for the appointment of an ALJ to
  reconsider the issues raised in Convergys’ exceptions to ALJ Henley’s July 31, 2017
  Recommended Decision and Order.

         FOR THE ADMINISTRATIVE REVIEW BOARD:



         WILLIAM T. BARTO
         Chief Administrative Appeals Judge




  3
         Lucia v. S.E.C., 138 S.Ct. 2044, 2055-56 (2018).

USDOL/OALJ REPORTER PAGE 2