Varnadore v. Oak Ridge National Laboratory, ARB No. 99-121, ALJ Nos. 1992-CAA-2 and 5, 1993-CAA-1, 1994-CAA-2 and 3, 1995-CAA-1 (ARB June 9, 2000)

U.S. Department of Labor

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

ARB CASE NO. 99-121
ALJ CASE NOS. 92-CAA-2,
    92-CAA-5, 93-CAA-1,
    94-CAA-2, 94-CAA-3,
   95-ERA-1
DATE: JUN - 9 2000

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

   Complainant in these consolidated cases under the environmental whistleblower laws and the Energy Reorganization Act, 29 C.F.R. Part 24 (1999), moved for an order "to draw adverse inferences," for oral argument, to make corrections to his March 3, 2000 rebuttal brief, and included a Freedom of Information Act request. For the reasons set out below, the motion to draw adverse inferences and for oral argument is denied; the motion to make corrections is granted and, as explained below, the FOIA request is being addressed separately.

1. Motion for an order drawing adverse inferences

   Complainant urges the Administrative Review Board to draw the inference that the Occupational Safety and Health Administration and the Office of the Solicitor have no objection to reopening this case and overruling the 1996 Final Decisions¹ because those agencies filed no response to Complainant's motions of May 2, 1998, and January 5, 1999, in the nature of motions under Rule 60(b) of the Federal Rules of Civil Procedure. It is not surprising, of course, that OSHA has not responded to Complainant's motions since it is not a party to these cases and has not sought leave to participate as amicus curiae.²

   Complainant renews his request for oral argument. Complainant refers by analogy to the practice before other adjudicatory boards in the Department of Labor, the Employees' Compensation Appeals Board, the Benefits Review Board, the Wage Appeals Board and the Board of Service Contract Appeals.³ Each of those boards has explicit regulations either requiring oral argument upon request or providing that the board in question has discretion to grant oral argument. See, e.g., 29 C.F.R. §7.14(b) (ARB procedures delegated from the former WAB); 29 C.F.R. §8.16 (ARB procedures delegated from the former Board of Service Contract Appeals); 20 C. F. R. §501.5(a) (Employees' Compensation Appeals Board); 20 C. F. R. §802.306 (Benefits Review Board).

   There is no provision on oral argument before the ARB under the regulations implementing the environmental whistleblower laws, 29 C. F. R. Part 24, and the absence of such a provision implies that granting oral argument is within the discretion of the Board. Furthermore, Complainant mischaracterizes the holding in Morgan v. United States, 298 U.S. 468 (1936), as promoting oral argument in administrative proceedings. To the contrary, Morgan explicitly states that "[a]rgument may be oral or written." 298 U.S. at 481. We find that oral argument would serve no useful purpose in our decision regarding Complainant's motions to reopen the record. The request is DENIED.

3. Motion to correct errors

¹ See Varnadore v. Oak Ridge Nat 'l Lab., Case Nos. 92-CAA-2, 92-CAA-5, 93-CAA-1, Sec'y. Dec. Jan. 26, 1996 and Varnadore v. Oak Ridge Nat']. Lab., Case Nos. 92-CAA-2, 92CAA-5, 93-CAA-1, 94-CAA- 2, 92-CAA-3, 95-ERA-1, ARB Dec. Jun. 14, 1996.

² The Briefing Order initially issued in this case stated a briefing date for the Assistant Secretary. Briefing order dated September 28, 1999. However that error was corrected in a subsequent order. Order clarifying Briefing Schedule, dated February 26, 2000.

³ The authority and responsibility of the Wage Appeals Board and the Board of Service Contract Appeals were transferred to the Administrative Review Board by Secretary's Order No. 2-96, 61 Fed. Reg. 19978 (May 3, 1996) .