Tag Archives: minimum pleading standard for whistleblower cases

Minimum Pleading Standard for Whistleblower Cases Reset – ARB Rejects Supreme Court’s "Plausibility" Standard, Holds "Fair Notice" Is Sufficient for Administrative Complaints to Survive Dismissal Motion, and Gives Complainant a Chance to Amend

by Allen B. Roberts, Stuart M. Gerson, Frank C. Morris, Jr., and Michael J. Slocum

Our previous postings have noted the progression of decisions during the past two years by the U.S. Department of Labor (“DOL”) Administrative Review Board (“ARB”) that have liberally expanded substantive provisions of whistleblower statutes under its jurisdiction. Now, the ARB has enabled whistleblowers to maintain their administrative complaints and survive dismissal in circumstances where recital of the factual bases of their claims would be fatally deficient if filed in federal court instead of a DOL administrative proceeding. The currently constituted ARB has rejected the heightened pleading standards, announced by the U.S. Supreme Court and applicable in federal district courts, requiring that a complaint set forth sufficient factual allegations to “state a claim to relief that is plausible on its face.” Instead of that judicial standard, the ARB has elected to require that an administrative whistleblower complaint filed before the Occupational Safety and Health Administration (“OSHA”) and the DOL’s Office of Administrative Law Judges (“OALJ”) need only “give ‘fair notice’ of the protected activity and adverse action” in order to withstand a motion to dismiss; and complainants are afforded “sufficient opportunity to amend or supplement” a complaint that does not measure up in the first instance. Evans v. U.S. Environmental Protection Agency, ARB Case No. 08-059 (July 31, 2012).     

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