High v. Lockheed Martin Energy Systems, Inc., ARB No. 02-091, ALJ No. 2002-CAA-1 (ARB Nov. 24, 2003)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO. 02-091
ALJ CASE NO. 02-CAA-1
DATE: November 24, 2003

In the Matter of:

DAVID MARSHALL HIGH,
    COMPLAINANT,

    v.

LOCKHEED MARTIN ENERGY SYSTEMS, INC.;
LOCKHEED MARTIN CORPORATION;
OAK RIDGE OPERATIONS OFFICE; and
U.S. DEPARTMENT OF ENERGY,
    RESPONDENTS.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:
    Edward A. Slavin, Esq., St. Augustine, Florida

For the Respondent:
    Charles W. Van Beke, Esq., Wagner, Myers & Sanger P.C., Knoxville, Tennessee

    Kenneth M. Brown, Esq., Oak Ridge, Tennessee

   This case arises under the employee protection provision of the Clean Air Act, 42 U.S.C. § 7622 (2000) (CAA). On October 9, 2001, David Marshall High filed a complaint requesting that the Occupational Safety and Health Administration (OSHA) investigate the disappearance of the record in a previous whistleblower claim (High v. Lockheed Martin Energy Systems, Inc., ARB No. 98-075, ALJ No. 1996-CAA-8). The record was lost in transmission from the Administrative Review Board (the Board) to the Office of Administrative Law Judges (OALJ) after the Board remanded the case for further proceedings. ¹ High contended that the Board was responsible for the loss. On October 22, 2001, OSHA determined that it had no authority to investigate the Board. High appealed that determination to the OALJ.

   On May 13, 2002, an Administrative Law Judge (ALJ) issued an Order to Show Cause ordering High to state why his complaint should not be dismissed for lack of jurisdiction. High responded to the order but his response did not address the jurisdictional issue raised in the show cause order. On June 26, 2002, the ALJ issued a Recommended Decision and Order (R. D. & O.) recommending dismissal of High's complaint because he failed to allege any basis for ordering an investigation of the Board by OSHA.

   On July 1, 2002, High submitted to the Board a Petition for Review and Request for Expedited Appeal, requesting review of the ALJ's R. D. & O.² In response, on July 24, 2002, Respondent Lockheed Martin Energy Systems submitted a document entitled "Respondent's Suggestion That Complainant's Petition for Review and Request For Expedited Appeal Be Denied."

¹ We note that the record in 1996-CAA-8 has been re-created. See High v. Lockheed Martin Energy Systems, Inc., 1996-CAA-8 (ALJ Nov. 27, 2002).

² The Petition for Review also requests review of the May 13, 2002 Order to Show Cause, as well as review of the ALJ's "reversal of his November 16, 2001 and January 17, 2002 remand orders to OSHA." Because of the disposition of the case it is not necessary to address these matters.