U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-119
ALJ CASE NOS. 92-CAA-2
92-CAA-5, 93-CAA-1,
94-CAA-2, 94-CAA-2
DATE: May 14, 1998
In The Matter of:
C. D. VARNADORE,
COMPLAINANT,
v.
OAK RIDGE NATIONAL LABORATORY,
LOCKHEED MARTIN ENERGY SYSTEMS,
INC., AND LOCKHEED MARIETTA CORP.,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
ORDER
On April 6, 1998, a three member panel of the United States Court of Appeals
for the Sixth Circuit issued a unanimous decision in Varnadore v. Secretary of Labor,
Docket Nos. 3888/4389, affirming the decisions of the Secretary of Labor and the Administrative
[Page 2]
Review Board in Varnadore v. Oak Ridge National Laboratory and Lockheed Martin Energy
Systems, Inc., Case Nos. 92-CAA-2, 92-CAA-5, 93-CAA-1 (Varnadore I), 94-CAA-2 (Varnadore II), and 94-CAA-3 (Varndaore III); Sec. Dec. Jan. 26, 1996;
ARB Dec. June 14, 1996. In late April 1998, Complainant C.D. Varnadore (Varnadore) filed in the
Sixth Circuit a Request for Reconsideration and Suggestion of Rehearing En Banc, and
Motion to Supplement the Record. Varnadore moved "pursuant to Federal Rule of Appellate
Procedure 16(b) to supplement the record" with seven pages of the transcript of an ALJ
hearing involving another complainant in another case. On April 29, 1998, attorneys for the
Department of Justice, representing the Secretary of Labor, filed an Opposition to Petitioner's Post-Decision Motion to Supplement the Record.
On May 2, 1998, counsel for Varnadore wrote the Secretary of Labor and the
Administrative Review Board, stating in part:
In a telephone communication initiated by the Clerk of the Sixth Circuit the
Clerk of the Sixth Circuit Court of Appeals requested that Complainant: (1) petition
the Secretary of Labor to reopen the case and consider this evidence, and (2) refile
the petition for en banc review on or before May 21, 1998. This filing is
made pursuant to that request, and on an urgent basis.
1 Mr. O'Brien had been the Chair
of the Administrative Review Board until his resignation in April 1998.
2 Ms. Harris sent copies of her
letter to the Departments of Labor and Justice and to Lockheed Martin Energy Systems (Energy
Systems).
3 The ALJ noted in Varnadore
I that "Respondent asserts that Complainant's action is barred by the 30-day statute of
limitations in the applicable environmental statutes." R. D. and O. at 77.
4 Even were we to find that the
Shelton testimony was not readily available, we would conclude that it is irrelevant to the issue whether
Wright took adverse action against Varnadore when he discussed the possibility of reassigning him to
R-151. Shelton was not present at that conversation. More critically, the seven pages of testimony
sought to be included in the record relate to her interpretation of a hearsay report recounting what
Wright allegedly had said in a conversation with another person months prior to the conversation at
issue.