1 These regulations were
amended in February 1998 to provide, inter alia, for review of environmental and
nuclear whistleblower complaints upon the filing of an appeal by a party aggrieved by an
Administrative Law Judge's decision. See 63 Fed. Reg. 6614 (Feb. 9, 1998). In this
case, the Administrative Law Judge issued a recommended decision and order on November 17,
1997; accordingly, this matter is before the Board pursuant to the pre-1998 automatic review
provision of the regulations. 29 C.F.R. §24.6(a) (1997).
2 CTI filed with the Board a
motion to strike Whitaker's Rebuttal Brief, arguing that the brief "impermissibly injects
arguments regarding the purported merits of [Whitaker's] underlying claim." Motion at
2. Whitaker opposed that motion, and CTI filed a rebuttal. It is unnecessary for us to rely on
Whitaker's Supplemental Statement of Facts, Rebuttal Brief at 2-3, or on the attachment to
Whitaker's Rebuttal Brief in reaching our decision, and we have not done so.
3 Although CTI is a named
respondent in this case, neither the Prehearing Order nor any other document was served on CTI
while this matter was pending before the ALJ. On March 4, 1998, after a briefing schedule had
been issued by the Board on review, CTI filed a motion for extension of time in which to file its
reply brief. CTI asserted that it had not been served with notice of Whitaker's request for a
hearing or with any documents while the case was pending before the ALJ, including the R. O.
D. The Board granted CTI's request, and CTI subsequently submitted its brief. In light of our
disposition of this matter we need not decide whether CTI was harmed by the failure of the
parties and the ALJ to see that CTI was served properly.
4 Our authority to review
summary judgment recommendations de novo comes not only from the Administrative
Procedure Act, but also from the nature of summary judgment itself, which goes only to the
questions (1) whether the correct legal standard has been applied, and (2) whether the factual
allegations are sufficiently specific and uncontroverted, i.e. that no material issues of
fact are disputed. Because the analysis on summary judgment is only about whether triable
claims have been presented, the special functions and contributions of the presiding judge are
not brought into play.
5 Whitaker had worked for ASIS
since 1991 in various positions. It is not clear from the record when he became the General
Manager at the Alyeska Marine Terminal, but Alyeska asserts in its Opposition Brief filed with
the Board that Whitaker served in that position beginning in July 1996. Brief at 3. Whitaker
was holding that position when the facts relevant to this case occurred.
6 The ALJ originally ordered the
parties to file memoranda on timeliness within 15 days of his June 24, 1997 order. Alyeska filed
its memorandum on July 17,1997, along with a motion for leave to file late. On August 18,
1997, Whitaker filed a motion to file his memorandum late together with his memorandum,
stating that Alyeska's counsel did not oppose the late filing.
7 In McGough, the
Secretary remanded for a hearing on timeliness because it was not clear from the record when
facts sufficient to put a reasonable person on notice became apparent.