amended, 42 U.S.C. §5851 (1994) (the Acts). Varnadore v. Secretary of Labor, 141 F.3d 625 (1998). The Court of Appeals affirmed decisions of the Secretary and the Administrative Review Board (ARB) dismissing a series of complaints filed by Complainant C.D. Varnadore. On October 19, 1998, Varnadore filed a motion with a Department of Labor Administrative Law Judge (ALJ) seeking to reopen these cases, to supplement the record, and to have the decisions of the Secretary and the ARB reconsidered and vacated. The ALJ denied the motion. Thereafter, Varnadore petitioned the ARB for review of the ALJ's order, and the parties filed briefs. We deny Varnadore's motion.

Order, May 14, 1998, slip op. at 3-4. In addition to concluding that the Shelton testimony was not "newly discovered," we emphasized that it was not relevant to Varnadore's complaint:

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.

Id. at 4.

   Following the Board's denial of his motion, Varnadore renewed his motion to supplement in the Court of Appeals. Motion, dated May 21, 1998. On June 4, 1998, the Court of Appeals denied that motion, and on June 19, 1998, the Court of Appeals denied rehearing. Varnadore v. Sec. of Labor, 141 F.3d 625.

   Varnadore did not further pursue his appeal by filing a Petition for a Writ of Certiorari to the United States Supreme Court. Instead, following the unfavorable Court of Appeals decision and denial of rehearing, Varnadore filed a motion with a Department of Labor ALJ to reopen the case and supplement the record. Varnadore argued that the record should be supplemented with the deposition of Former Secretary of Energy Hazel O'Leary, which was taken in an unrelated action. Varnadore also asserted that the decisions of the Secretary of Labor and the Board in these cases must be reconsidered in light of two recent Supreme Court decisions on the law of hostile working environment under Title VII of the Civil Rights Act of 1964: Faragher v. City of Boca Raton, 524 U.S. 775 (1998)(Faragher), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)(Ellerth). Varnadore did not include in his motion to the ALJ a renewal of his request to supplement the record with the Shelton testimony.

   The ALJ denied Varnadore's motions to reopen and supplement the record with the O'Leary deposition in an order dated December 28, 1998 (Ord.). The ALJ noted that the Sixth Circuit had dismissed Varnadore's cases, Varnadore had not appealed them further, and the Court of Appeals had not remanded any of the cases to the Board or to any ALJ for further proceedings. Id. at 3. The ALJ found that Varnadore had failed "to state any theory which would give [an ALJ] or the ARB any remote authority to reopen the records in any of these cases at this juncture." Id. Finally the ALJ ruled that, as he was not currently assigned any cases involving Varnadore, he did not have jurisdiction to decide the motions.

   Varnadore then petitioned this Board for review. Before the Board he once again requests that we reopen the record for the inclusion of the Shelton testimony; seeks inclusion of the O'Leary deposition in the record; and requests that we "reconsider" and "vacate" the 1996 decisions of the Secretary and the ARB in Varnadore I, II, and III, based, at least in part, on the Supreme Court decisions in Faragher and Ellerth.

   Varnadore seeks to supplement the record and to gain rehearing by this Board in cases which were dismissed by the Court of Appeals for the Sixth Circuit. His motion flies in the face of some of the most fundamental principles of our judicial system, including the constitutional limits on federal courts, separation of powers, res judicata, and finality. We reject this meritless attempt to relitigate a case which has been decided once and for all.

the Sixth Circuit, we would render that court's decision advisory. As the Court of Appeals for the Second Circuit has noted:

    A judgment entered by an Article III court having jurisdiction to enter that judgment is not subject to review by a different branch of the government, for if a decision of the judicial branch were subject to direct revision by the executive or legislative branch, the court's decision would in effect be merely advisory.

Town of Deerfield v. F.C.C., 992 F.2d 420, 428 (1993). "It has been the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action." Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corporation, 333 U.S. 103, 113-114 (1948).

   Moreover, "[j]udgments, within the powers vested in courts by the Judiciary Article of the Constitution, may not lawfully be revised, overturned or refused faith and credit by another Department of the Government." Id. at 113. The judicial branch -- the Court of Appeals for the Sixth Circuit -- has spoken finally in this case, affirming our dismissal of the actions. Varnadore could have, but did not, seek Supreme Court review. He cannot now seek review from this Board, in the form of reconsideration, for we will not attempt to "arrogate" to ourselves "the power to (a) review or (b) ignore the judgments of the courts." Town of Deerfield v. F.C.C., 992 F.2d at 430.

   Varnadore's attempt to reopen this case also offends concepts of finality, which find their chief expression in the doctrine of res judicata or claim preclusion. The question of the applicability of res judicata arises when a party to an action which has been fully litigated and decided brings a second action against the other party to the first action based on the same claim. In such a case

the [first] judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose . . . . Such demand or claim, having passed into judgment, cannot again be brought into litigation between the parties in proceedings at law upon any ground whatever.

Cromwell v. County of Sac, 94 U.S. 351, 352-353 (1876); Parklane Hosiery v. Shore, 439 U.S. 322, 326 n.5 (1979). There are strong policy reasons supporting the doctrine of claim preclusion. As the Supreme Court has recognized

it ensures "the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for, the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if . . . conclusiveness did not attend the judgments of such tribunals."

Nevada v. United States, 463 U.S. 110, 129 (1983), quoting Southern Pacific Railroad v. United States, 168 U.S. 1, 49 (1897). Res judicata would bar Varnadore from bringing this action anew. Related principles of finality bar his attempts to perpetuate a case which has been concluded.

   It matters not that Varnadore did not seek a writ of certiorari to the United States Supreme Court following his loss in the Court of Appeals. "If a litigant chooses not to continue to assert his rights after an intermediate tribunal has decided against him, he has concluded his litigation as effectively as though he had proceeded through the highest tribunal available to him." Angel v. Bullington, 330 U.S. 183, 189 (1947). To borrow from a decision of the Court of Appeals for the First Circuit, "the policies of economy, efficiency, repose and fairness underlying the claim preclusion doctrine are best served" by holding Varnadore "to the consequences of his actions and inactions." Puerto Rico Maritime Shipping Authority v. Federal Maritime Commission, 75 F.3d 63, 68 (1996).

   Finally, it does not matter whether the prior judgments of the Secretary, the Board, and the Sixth Circuit "are right or wrong or whether subsequent changes in the law, the discovery of additional facts or considerations of fairness should merit a different result in the subsequent litigation." 18 Moore's Federal Practice, §131.12, at 131-22/23 (3d ed. 1999). The claim preclusion doctrine "is concerned only with bringing an end to litigation after the parties have had a fair opportunity to litigate their claims." Id. Varnadore has had a full and fair opportunity to litigate his case before the Secretary, this Board, the Court of Appeals, and the Supreme Court. We hold that he is now barred from relitigating his case.

   We have held that Rule 60(b) cannot be invoked in the circumstances of this case without colliding with constitutional principles of separation of powers and the role of Article III courts. Even if we were to hold that Rule 60(b) is available in these circumstances, however, we would conclude that Varnadore has failed to make any showing which would justify invoking that rule, which is an extremely narrow exception to principles of finality, to reopen this case.

   Rule 60(b) relief is extraordinary and is only to be granted in exceptional circumstances. Bud Brooks Trucking, Inc. v. Bill Hodges Trucking, Inc., 909 F.2d 1437, 1440 (10th Cir. 1990). See also C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205 (7th Cir.1984) (Rule 60(b) relief is an "extraordinary remedy and granted only in exceptional circumstances." ). With these general principles in mind we turn to the three matters with which Varnadore seeks to supplement the record in these cases.

   First, the vast majority of Varnadore's argument relates to his attempts to admit the Shelton testimony, which could only be admitted under Rule 60(b) if it were "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." Rule 60(b)(2). To prevail on a Rule 60(b)(2) motion, the Sixth Circuit has held that the moving party must show: (1) that it exercised due diligence in obtaining the

Biggins v. Hazen Paper Co., 111 F.3d 205, 212 (1st Cir. 1997), cert. denied 522 U.S. 952 (emphasis in original). Accord Kansas Public Employees Retirement Sys. v Reimer & Kroger Assoc., Inc., 194 F.3d 922, 925 (8th Cir. 1999); Norgaard v. DePuy Orthopaedics, Inc., 121 F.3d 1074, 1076-77 (7th Cir. 1997); Clifton v. Attorney Gen'l of the State of Calif., 997 F.2d 660, 665 (9th Cir. 1993).

    In light of the foregoing, Varnadore's motion to reopen, supplement the record, reconsider, and vacate is DENIED. Varnadore's motion for oral argument is DENIED. LMES' motion for sanctions is DENIED.

   SO ORDERED.

       PAUL GREENBERG
       Chair

       CYNTHIA L. ATTWOOD
       Member

E. Cooper Brown, Member, concurring:

   The Board's authority to reconsider the prior final judgments herein at issue does not derive from FRCP Rule 60(b) but from the Board's inherent authority under the environmental whistleblower protection laws, as we have held in a number of recent decisions. See, e.g., Macktal v. Brown & Root, ARB Nos. 98-112, -122A, 86-ERA-23, Order Granting Reconsideration (Nov. 20, 1998); Jones v. E. G. & G. Materials, ARB No. 97-129, 95- CAA-3, Order Granting Reconsideration (Nov. 24, 1998); Leveille v. N.Y. Air Nat'l Guard, ARB No. 98-079, 94-TSC 3, 4, Order Granting Reconsideration (May 16, 2000). Rule 60(b)'s relevance is in the evaluation of when and under what circumstances the Board will exercise its authority to reopen and reconsider a prior final judgment, decision or final order. Given that neither the rules of practice promulgated at 29 C.F.R. Part 18 nor any rule of special application provides for or controls the situation where a party seeks relief from a prior judgment of the Board, FRCP Rule 60(b) is applicable in determining the appropriate circumstances under which such relief will be granted. See 29 C.F.R. §18.1(a).

   As the majority notes, the basis for Complainant's motion is threefold. In essence Mr. Varnadore argues that he is entitled to relief from the Board's 1996 judgments pursuant to Rule 60(b) because of: (1) the existence of "newly discovered evidence" in the form of the 1995 transcript testimony of Ms. Brenda Shelton in another whistleblower case, (2) "newly discovered evidence" in the form of the deposition testimony of former Secretary of Energy Hazel O'Leary, and (3) a change in the decisional law upon which the Board's earlier judgments were based. For the reasons hereafter explained, Mr. Varnadore's motion fails on all three grounds.

   Complainant's attempt to set aside the Secretary and Board's 1996 judgments based upon his argument that the 1995 Shelton testimony constitutes "newly discovered evidence" within the meaning of FRCP Rule 60(b)(2) fails for several reasons. To begin with, to constitute "newly discovered evidence" within the meaning of Rule 60(b)(2), the evidence must have been in existence at the time of trial. Moreover, it must be established that the party now seeking relief was not only unaware at the time of trial of such evidence but that, despite the party's due diligence, the evidence could not have been discovered in time to move for a new trial pursuant to Rule 59, FRCP. Mitchel v. Shalala, 48 F.3d 1039, 1041 (8th Cir. 1995); Jones v. Aero/Chem Corp., 921 F.2d 875, 878 (9th Cir. 1990). See 12 Moore's Federal Practice, §60.42[3] & [4] (3d ed. 1998). In an environmental whistleblower case, the definitional standard for what constitutes "newly discovered evidence" is comparable. Timmons v. Mattingly Testing Services, 95-ERA-40, ARB Decision & Order, June 21, 1996, slip op. at 3 & n.3. Required is that the evidence was in existence at the time of the ALJ hearing, that the moving party was at the time of the hearing "excusably ignorant" of such evidence, and that notwithstanding the moving party's due diligence the evidence could not be discovered in time to move, before the ALJ or this Board, to reopen and supplement the evidentiary record pursuant to 29 C.F.R. §18.54(c). Id.

   The Shelton testimony was elicited August 31, 1995, after the ALJ had issued his recommended decision in Varnadore I, but before either the Secretary's subsequent decision therein or the Board's June 14, 1996 Final Consolidated Decision and Order in Varnadore I, II and III. However, as the majority notes (quoting the Board's previous order relative to this matter, Order of May 14, 1998, ARB Case No. 98-119), Complainant's attorney also represented Ms. Shelton in the action in which her testimony was elicited. Thus, the record cannot be argued to support a finding that Complainant did not know of, or could not with due diligence have discovered, the existence of Ms. Shelton's testimony in time to seek supplementation of the record pursuant to 29 C.F.R. §18.54(c). See Moore's, §§ 60.42[4][b], 60.42[5].

   To Mr. Varnadore's credit, he does not argue that he was unaware at the time of the Shelton testimony. Rather, he argues that the evidence should now be considered as a basis for reconsideration of the earlier judgments because it "was not available until over two years after [the ALJ decision] in Varnadore I." Complainant argues that his delay in presenting his motion was justified for two reasons: He had no reason to believe that Shelton testimony was relevant until the Sixth Circuit's final ruling and, secondly, the appeal to the Sixth Circuit otherwise tolled the time in which he had to file his Rule 60(b) motion.

   Arguably, Mr. Varnadore sought reconsideration of the Board's prior decisions consistent with the second procedural alternative. As the majority has noted, Complainant previously raised before the Board the Shelton testimony as a basis for reconsideration in May of 1998, while the Varnadore cases were pending on appeal. This followed Mr. Varnadore's effort of a month earlier to have the Sixth Circuit reopen and supplement the record with the Shelton testimony. Upon the advice of the Clerk for the Sixth Circuit, that his request was more appropriately a matter for Board consideration, Complainant filed with the Board his motion to reopen and reconsider the Board's previous decisions based on Ms. Shelton's testimony. Assuming the clerk's "advisory" could be construed as, in effect, a "remand" to the Board for the limited purpose of considering his motion, the Board thus properly assumed jurisdiction to enter our ruling in response thereto, properly rejecting his motion based on Ms. Shelton's 1995 transcript testimony.

   Neither can the other two factors cited by Complainant be successfully relied upon in the instant case as grounds for reopening and reconsidering the Board's previous decisions.

   Secretary O'Leary's 1998 deposition testimony, taken in an unrelated matter, is cited as "newly discovered evidence" justifying reconsideration under Rule 60(b)(2). However, the Secretary's testimony not only fails to meet the basic definition of "newly discovered evidence" (i.e. in existence at the time of the judgment from which relief is sought, see discussion supra), it fails, as the majority notes, to meet the further requirement of Rule 60(b)(2) that the evidence be "material and controlling" and that it "clearly would have produced a different result if presented before the original judgment." Good v. Ohio Edison Co., 149 F.3d 413, 423 (6th Cir. 1998). See also, e.g., Longden v. Sunderman, 979 F.2d 1095, 1103 (5th Cir. 1992); Coastal Transfer Co. v. Toyota Motor Sales, 833 F.2d 208, 211-12 (9th Cir. 1987).

   Finally, Mr. Varnadore cites the recent Supreme Court decisions in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998), and Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998), in support of the proposition that they require setting aside our prior decisions pursuant to Rule 60(b)(5) and/or Rule 60(b)(6). Both cases address to what extent an employer will be held vicariously liable for the creation of an actionable hostile work environment by a supervisor of a victimized employee. In so doing, the Court focused considerable attention on its prior decision in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986). While both the Secretary and the Board, in reaching our 1996 decisions, relied (in part) on Meritor, that reliance was at most for Meritor's precedential value in defining what constituted a hostile work environment under the whistleblower statutes. Case law relied upon as precedent in reaching the decision or judgment from which relief is subsequently sought does not constitute the type of "prior judgment" contemplated under Rule 60(b)(5). Cf. Tomlin v. McDaniel, 865 F.2d 209, 210-11 (9th Cir. 1989); Luben v. Selective Service System Local Board No. 27, 453 F.2d 645, 650 (1st Cir. 1972). See Moore's, §60.46[1] & [2]. More importantly, Meritor was neither reversed nor otherwise vacated by Faragher and Ellerth. To the contrary, the Court noted that Meritor served in both cases as the foundation upon which its holdings regarding the imposition of vicarious liability were based. See Faragher, 524 U.S. at 792; Ellerth, 524 U.S. at 763. Accordingly, Complainant's motion based upon Rule 60(b)(5) fails.

   For similar reasons, Complainant's motion seeking reconsideration based on Faragher and Ellerth fails under Rule 60(b)(6). Assuming the Supreme Court's 1998 decisions constitute, as urged by Complainants, a change in the decisional law upon which our 1996 decisions were based, the courts have held that such change, by itself, cannot serve as a basis for reconsideration under Rule 60(b)(6), FRCP. See Agostini v. Felton, 117 S.Ct. 1997, 2018 (1997) ("Intervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6)."). See Moore's, §60.48[5].