In the Matter Of:
MICHAEL E. TIMMONS, CASE NO. 95-ERA-40
COMPLAINANT, DATE: June 21, 1996
v.
MATTINGLY TESTING SERVICES,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD[1]
DECISION AND ORDER OF REMAND
This case arises under Section 211, the employee protection
provision, of the Energy Reorganization Act of 1974 (ERA), as
amended, 42 U.S.C. § 5851 (1994).[2] Before this Board for
review is the Recommended Decision and Order (R. D. and O.)
issued on October 20, 1995, by the Administrative Law Judge
(ALJ). The ALJ concluded that Complainant, Michael E. Timmons
(Timmons), failed to establish that Respondent, Mattingly Testing
Services (MTS), violated the ERA when it terminated him from his
employment with MTS as a welding inspector and radiographer. A
thorough review of the record, including the submissions filed
before this Board by Timmons, indicates that the case must be
remanded for a supplemental hearing and for application of the
legal standards relevant to the parties' burdens under the 1992
Amendments to the ERA, see n.2 supra.
DISCUSSION
I. Evidentiary issues
On review before this Board, Timmons has submitted two
affidavits and urges that these documents be admitted into
evidence at this time and considered in reviewing this case. In
the alternative, Timmons requests that the case be remanded for
the taking of additional evidence before the ALJ. For guidance
[PAGE 2]
in disposing of Timmons' requests, we look to the regulations
provided at 29 C.F.R. Part 24 regarding the investigation and
adjudication of complaints filed under Federal employee
protection provisions, the Rules of Practice and Procedure for
the Office of Administrative Law Judges, found at 29 C.F.R. Part
18, and the Federal Rules of Civil Procedure. See 29
C.F.R. § 18.1; see also Nolder v. Kaiser Engineers, Inc.,
Case No. 84-ERA-5, Sec. Dec., June 28, 1985, slip op. at 5-6.
In accord with pertinent criteria provided by the foregoing
authorities,[3] the affidavit authored by James Simpkin
(Simpkin) clearly constitutes newly discovered evidence that was
in existence at the time of the hearing and of which Timmons was
excusably ignorant.' See NLRB v. Jacob E. Decker and
Sons, 569 F.2d 357, 363 (5th Cir. 1978)(quoting United
States v. 41 Cases, More or Less, 420 F.2d 1126, 1132 (5th
Cir. 1970)), cited in McDaniel v. Boyd Brothers
Transportation, Case No. 86-STA-6, Sec. Ord., Mar. 16, 1987,
slip op. at 3-6; see also 29 C.F.R. § 18.54(c);
Fed.R.Civ.P. 60(b)(2).
In his statement, Simpkin provides "new and material"
evidence, i.e., Simpkin indicates knowledge, which he
possessed at the time of the hearing, that is supportive of a
finding of retaliatory intent by MTS. Simpkin affidavit at 2-4;
cf. Bassett v. Niagara Mohawk Power Corp., Case No. 85-
ERA-34, Sec. Dec., Sept. 28, 1993, slip op. at 5 n.3 (noting that
evidence proffered post-hearing did not qualify as newly
discovered).
The affidavit also indicates that Simpkin's testimony was
"not readily available" when the case was before the ALJ.
Simpkin affidavit at 3. Although Simpkin had reported the
pertinent information to the Nuclear Regulatory Commission (NRC)
prior to the hearing in this matter, he had done so on a
confidential basis only, because of his previous personal
association with the owner of MTS. Simpkin affidavit at 2-3.
After a decision was rendered by the ALJ adverse to Timmons,
Simpkin contacted Timmons and informed him of the evidence that
he could provide pertinent to this case. Simpkin affidavit at
3-4.
It is also significant that neither the Respondent's Pre-
Hearing Statement of Position nor the Respondent's Supplement to
Pre-Hearing Statement of Position lists Simpkin among the
witnesses having knowledge pertinent to this case. See
Respondent's [8/3/95] Pre-Hearing Statement of Position at 2;
Respondent's [8/7/95] Supplement to Pre-Hearing Statement of
Position at 1. In addition, there is no mention of Simpkin
contained in the investigative reports of record. See CX
2, 5-7. Under these circumstances, Timmons could have become
aware of Simpkin's potential as a witness only through extensive
discovery. A review of the record indicates that the parties
[PAGE 3]
were not afforded an opportunity for such discovery. In the Notice of Hearing and Pre-Trial Order issued on
July 26, 1995, the ALJ noted that the ERA and pertinent
regulations provide a relatively brief time frame for
investigation and adjudication of complaints by the Department of
Labor. Notice of Hearing at 1. The Notice also states, "The
short time frame . . . indicates that the usual, often lengthy,
discovery proceedings are not available." Id. In a
similar vein, the ALJ stated at hearing, without further
explanation, that the hearing would be limited to one day. T.
193.[4]
The statute and regulations do contain provisions concerning
the time within which the Department of Labor's investigation and
adjudication of ERA complaints should be completed. 42 U.S.C.
§ 5851(b)(2); 29 C.F.R. §§ 24.4, 24.5, 24.6. Such
provisions have been construed as directory, rather than
mandatory or jurisdictional, however, Thomas v. Arizona Public
Service Co., Case No. 89-ERA-19, Sec. Dec., Sept. 17, 1993,
slip op. at 16 n.8, and should not interfere with the full and
fair presentation of the case by the parties, in accordance with
the Administrative Procedure Act, 5 U.S.C. §§ 554(c),
(d), 556(d). Moreover, the full and fair presentation of the
case by the parties is crucial to serving the ERA purpose of
protecting employees from retaliation for acting on their safety
concerns, see English v. General Electric Co., 496 U.S. 72
(1990); Mackowiak v. University Nuclear Systems, Inc., 735
F.2d 1159, 1163 (9th Cir. 1984). The importance of safety in the
handling of radioactive materials cannot be gainsaid; there is a
crucial public interest at stake when issues of non-compliance
with safety regulations arise. See Hoffman v. Fuel Economy
Contracting, Case No. 87-ERA-33, Sec. Ord., Aug. 4, 1989,
slip op. at 4; see also Rose v. Sec'y of Labor, 800 F.2d
563, 565 (6th Cir. 1986)(Edwards, J., concurring, describing
nuclear technology as "one of the most dangerous" ever invented).
Particularly in view of the limits placed on discovery by
the pre-hearing order, it is clear that the Simpkin testimony was
"not readily available" prior to hearing. See Thomas,
slip op. at 21-22 n.10 (admitting evidence that qualified as
"not readily available"); cf. Ake v. Ulrich Chemical,
Inc., Case No. 93-STA-41, Sec. Dec., Mar. 21, 1994, slip op.
at 3 (holding that movant had not demonstrated that evidence was
"not readily available"); McNally v. Georgia Power Co.,
Case Nos. 85-ERA-27, 85-ERA-29, 85-ERA-30, 85-ERA-31, 85-ERA-
32, Sec. Dec., Sept. 8, 1992, slip op. at 3 n.2 (holding that
movant had not demonstrated that evidence was not readily
available ).
Simpkin's testimony thus qualifies for post-hearing
admission.The record indicates that not only was the
parties' preparation for hearing abbreviated but, as discussed
further
[PAGE 4]
infra, the presentation of evidence at hearing was also
unfairly rushed. See English v. General Electric Co.,
Case No. 85-ERA-2, Under Sec. Remand Ord., May 9, 1986. In
addition, MTS must be provided a meaningful opportunity to
respond to the Simpkin allegations. See Administrative
Procedure Act, 5 U.S.C. § 556(d); Land v. Consolidated
Freightways, Case No. 91-STA-28, Sec. Ord., May 6, 1992, slip
op. at 5-8 and cases cited therein; see also 29 C.F.R.
§ 18.803(a)(29) (Hearsay exceptions; availability of
declarant immaterial; written statements of lay witnesses).
Consequently, and on the additional grounds discussed
infra, this case must be remanded to the ALJ. On remand,
the parties must be provided an opportunity for discovery and
presentation of evidence pertinent to the issues contained within
the Simpkin affidavit. See generally 5 U.S.C.
§§ 554(c),(d), 556(d).
Timmons authored the other affidavit that has been submitted
for admission into evidence. The Timmons affidavit presents a
possible explanation for the discrepancies between the results of
Timmons' inspection of the bridge girders for Roscoe Steel and
the re-inspection findings of his supervisor. Attached to the
affidavit is an excerpt from the American Welding Society Bridge
Welding Code, which is published in conjunction with the American
Association of State Highway and Transportation Officials.
Timmons affidavit, exhibit A.
Although the Timmons affidavit contains material evidence
not previously included in the record, neither the affidavit nor
other record materials demonstrate that such information was not
readily available, or that Timmons was excusably ignorant of it,
prior to hearing. See 29 C.F.R. § 18.54(c); Jacob
E. Decker and Sons, 569 F.2d at 363; see generally
Ake, slip op. at 3; McDaniel, slip op. at 3-6. As
discussed in the foregoing analysis and infra, however,
the ALJ improperly limited the parties' pre-hearing preparation
and the presentation of evidence at hearing. It is also
significant that some statements contained in the Timmons
affidavit are related to the allegations presented in the Simpkin
affidavit. Compare Timmons affidavit at 2-3 with
Simpkin affidavit at 2-4. We therefore conclude that post-
hearing admission of evidence relevant to the issues addressed in
the Timmons affidavit is appropriate, as the conduct of the
proceedings before the ALJ interfered with the overall
presentation of the Complainant's case.[5] See
discussion of relevancy, infra; see Fed.R.Civ.P.
60(b)(4), (6); see also V.T.A., Inc. v. Airco, Inc., 597
F.2d 220, 225 (10th Cir. 1979); see generally Hazel-Atlas
Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244
(1944)(stating that public interests involved in a patent suit
provide support for re-opening of case), cited in Plaut v.
Spendthrift Farm, Inc., 115 S.Ct. 1447 (1995)(noting
[PAGE 5]
that Rule 60(b) is based in the courts' own inherent and
discretionary power . . . to set aside a judgment whose
enforcement would work inequity. ). Accordingly, on
remand the parties must also be provided an opportunity to adduce
evidence relevant to the factual issues addressed in the Timmons
affidavit.[6]
The time constraints placed on the proceedings before the
ALJ directly interfered with the parties' opportunity for a full
and fair presentation of the case at hearing. In conducting the
hearing, the ALJ erred in repeatedly limiting testimony and
refusing to admit documentary evidence on relevancy grounds.
T. 27-28, 115-22, 140-41, 244, 294. These rulings appear to be
related to the one day limitation that was placed on the hearing
and the apparently rushed nature of the proceedings that
resulted. See, e.g., T. 234; see also APA
discussion supra. As background for the examination of
these erroneous rulings and in the interest of avoiding the
repetition of error on remand, the following principles
concerning the evaluation of evidence of retaliatory intent in
cases arising under the ERA are noted.
As is frequently the case in whistleblower complaints,
notwithstanding the Simpkin affidavit, Timmons' allegations of
retaliatory intent are founded upon circumstantial evidence. In
such cases, the determination of whether retaliatory intent has
been established requires careful evaluation of all evidence
pertinent to the mindset of the employer and its agents regarding
the protected activity and the adverse action taken. See
Frady v. Tennessee Valley Authority, Case Nos. 92-ERA-19, 92-
ERA-34, Sec. Dec., Oct. 23, 1995, slip op. at 7-10; see
alsoEllis Fischel State Cancer Hospital v. Marshall,
629 F.2d 563, 566 (8th Cir. 1980)(in employee discrimination
cases, "[t]he presence or absence of retaliatory motive is a
legal conclusion and is provable by circumstantial evidence even
if there is testimony to the contrary by witnesses who perceived
lack of such improper motive"), quoted in Mackowiak, 735
F.2d at 1162. As noted by the United States Supreme Court in an
employment discrimination case arising under Title VII of the
Civil Rights Act of 1964, there will rarely be "eyewitness"
testimony concerning an employer's mental processes. United
States Postal Service Board of Governors v. Aikens, 460 U.S.
711, 716 (1983). Fair adjudication of a complaint such as this
thus requires full presentation of a broad range of evidence that
may prove, or disprove, retaliatory animus and its contribution
to the adverse action taken.[7]
Antagonism toward activity that is protected under the ERA
may manifest itself in many ways, e.g., ridicule, openly
hostile actions or threatening statements, or, in the case of a
whistleblower who contacts the NRC, simply questioning why the
whistleblower did not pursue corrective action through the usual
[PAGE 6]
internal channels. See Smith v. Esicorp, Inc., Case No.
93-ERA-0016, Sec. Dec., Mar. 13, 1996, slip op. at 23-27;
Harrison v. Stone & Webster Engineering Group, Case No.
93-ERA-44, Sec. Dec., Aug. 22, 1995, slip op. at 8-9;
Mandreger v. Detroit Edison Co., Case No. 88-ERA-17, Sec.
Dec., Mar. 30, 1994, slip op. at 19-22; Pillow v. Bechtel
Const., Inc., Case No. 87-ERA-35, Sec. Dec., July 19, 1993,
slip op. at 22. In addition, deliberate violations of NRC
regulations suggest antagonism toward the NRC regulatory scheme
and thus may provide support for an inference of retaliatory
intent. See Nichols v. Bechtel Const. Co., Case No. 87-
ERA-0044, Sec. Dec., Oct. 26, 1992, slip op. at 16-17 (discussing
nuclear plant supervisor's disregard of safety procedures as a
basis for drawing inference of retaliatory intent toward
whistleblower), aff'd sub nom. Bechtel Const. Co. v. Sec'y of
Labor, 50 F.3d 926 (11th Cir. 1995); cf. Moon v. Transp.
Drivers, Inc., 836 F.2d 226, 229-30 (6th Cir. 1987)(relying
on employer's encouraging of safety complaints in concluding that
complaint filed under employee protection provision of Surface
Transportation Assistance Act, 49 U.S.C. § 31105, lacked
merit); Gibson v. Arizona Public Service Co., Case Nos.
90-ERA-29, 90-ERA-46, 90-ERA-53, Sec. Dec., Sept. 18, 1995, slip
op. at 7 (relying on employer's "pervasive policy encouraging
safety complaints" in concluding that whistleblower complaint
lacked merit).
When disciplinary action, including termination from
employment, is involved, the past practice of the employer in
similar situations is relevant to determining whether there has
been disparate treatment, which may provide highly probative
evidence of retaliatory intent.[8] See Lockert v. United
States Dept. of Labor, 867 F.2d 513, 516, 517 (9th Cir.
1989); DeFord v. Sec'y of Labor, 700 F.2d 281, 287 (6th
Cir. 1983); Dysert v. Westinghouse Electric Corp., Case
No. 86-ERA-39, Sec. Dec., Oct. 30, 1991, slip op. at 5-6 and
cases cited therein; Johnson v. Old Dominion Security,
Case Nos. 86-CAA-03, 86-CAA-04, 86-CAA-05, Sec. Dec., May 29,
1991, slip op. at 18.
Furthermore, a complete understanding of the testimony of
the witnesses, including testimony regarding technical
procedures, is necessary for the drawing of pertinent inferences
and the resolution of conflicts in that testimony. See
generally Zinn and Morris v. University of Missouri, Case
Nos. 93-ERA-34, 93-ERA-36, Sec. Dec., Jan. 18, 1996, slip op. at
3 and cases cited therein (adopting findings of fact rendered by
ALJ). In the instant case, a proper understanding of the
testimony of the witnesses concerning relevant technical
procedures requires at least a superficial understanding of the
fields of radiography and welding inspection.
The ALJ thus erred in refusing, on relevancy grounds, to
[PAGE 7]
hear testimony concerning the technical aspects of the handling
of radioactive isotopes at MTS and concerning the technical
aspects of bridge girder inspection. See T. 27-28, 115-
22. Similarly, the ALJ erred in refusing to hear testimony
regarding the quality standards and practices prevailing at MTS
prior to Timmons' termination and regarding MTS compliance or
non-compliance with NRC safety regulations prior to its
investigation by the NRC.[9] T. 118, 140-41, 244, 294.[10]
The case must therefore be remanded for a supplemental
hearing before the ALJ. Such hearing will provide the parties an
opportunity to conduct discovery and adduce evidence relevant to
the issues addressed in the Simpkin and Timmons affidavits. In
addition, to rectify the erroneous rulings limiting evidence on
the foregoing issues, the parties will be allowed to conduct
discovery and adduce evidence relevant to those issues.[11]
See generally Lockert, 867 F.2d at 517 (addressing broad
discretion of Secretary in remanding case to ALJ). The ALJ also erred in refusing to admit two NRC
investigative reports that were proffered by Timmons at hearing,
on relevancy grounds. T. 193-94; see CX 5, 6; see also
T. 15, 118-19.[12] This evidence is pertinent to the
question of retaliatory animus among MTS managers as these NRC
reports document knowing, deliberate violations of NRC
regulations by MTS management. See generally Nichols,
slip op. at 16-17. The ALJ's ruling excluding these two exhibits
is therefore reversed.
II. Pertinent legal standards
To prevail in this proceeding, Timmons must establish, by a
preponderance of the evidence, that MTS terminated him, at least
in part, based on his protected activity. See Carroll v.
United States Dept. of Labor, 78 F.3d 352 (8th Cir. 1996);
Thomas, slip op. at 20 (citing St. Mary's Honor Center
v. Hicks, 113 S.Ct. 2742, 125 L.Ed. 2d 407 (1993)).
Pursuant to the CNEPA amendments to the ERA, if Timmons carries
his burden, MTS may avoid liability only by establishing, by
clear and convincing evidence, that Timmons would have been
terminated in the absence of the protected activity. See
Section 211(b)(3)(D) of the ERA, 42 U.S.C. §
5851(b)(3)(D); Johnson v. Bechtel Const. Co., Case No. 95-
ERA-11, Sec. Dec., Sept. 28, 1995, slip op. at 2; Dysert v.
Florida Power Corp., Case No. 93-ERA-21, Sec. Dec., Aug. 7,
1995, appeal docketed Dysert v. Sec'y of Labor, No. 95-
3298 (11th Cir. Sept. 28, 1995); Yule v. Burns International
Security Serv., Case No. 93-ERA-12, Sec. Dec., May 24, 1995,
slip op. at 7-13; see generally Grogan v. Garner, 498 U.S.
279 (1991)(discussinghigher clear and convincing evidence
standard in comparison with preponderance of the evidence
standard within context of Section 523(a) of the Bankruptcy Code,
11 U.S.C. § 523(a)). On remand, the ALJ must render
appropriate findings based on the
[PAGE 8]
supplemented record as a whole, consistent with the foregoing
legal standards and in accord with pertinent APA requirements.
Cf. R. D. and O. at 2 (summarizing parties' burdens
without discussing the standard of proof for each).[13]
ORDER
Accordingly, this case is remanded to the ALJ for further
proceedings consistent with this opinion.
SO ORDERED.
__________________________
DAVID A. O'BRIEN
Chair
__________________________
KARL J. SANDSTROM
Member
__________________________
JOYCE D. MILLER
Alternate Member
[ENDNOTES]
[1]
On April 17, 1996, the Secretary of Labor delegated authority
to issue final agency decisions under, inter alia, the
Energy Reorganization Act of 1974, as amended, 42 U.S.C. §
5851 (1994), and the implementing regulations, 29 C.F.R. Part 24,
to the newly created Administrative Review Board (ARB).
Secretary's Order 2-96 (Apr. 17, 1996), 61 Fed. Reg. 19978 (May
3, 1996)(copy attached).
Secretary's Order 2-96 contains a comprehensive list of the
statutes, executive order, and regulations under which the ARB
now issues final agency decisions. A copy of the final
procedural revisions to the regulations, 61 Fed. Reg. 19982,
implementing this reorganization is also attached.
[2]
Section 211 of the ERA was formerly designated Section 210, but
was redesignated pursuant to Section 2902(b) of the Comprehensive
National Energy Policy Act (CNEPA) of 1992, Pub. L. No. 102-486,
106 Stat. 2776, which amended the ERA effective October 24, 1992.
[3]
Section 18.54(c) provides that admission of evidence not timely
submitted to the ALJ is limited to "new and material evidence
[that] has become available which was not readily available prior
to the closing of the record." 29 C.F.R. § 18.54(c). Rule
60(b)(2) provides relief based on newly discovered evidence
which by due diligence could not have been discovered in time to
move for a new trial under Rule 59(b). Fed.R.Civ.P. 60(b)(2).
These provisions thus present similar standards, which have
consistently been relied on to dispose of requests that the
record be reopened in whistleblower cases pending before the
Secretary. See, e.g., Ake v. Ulrich Chemical, Inc., Case
No. 93-STA-41, Sec. Dec., Mar. 21, 1994, slip op. at 3.
[4]
The following abbreviations are used herein for references to
the record: Hearing Transcript, T.; Complainant's Exhibit, CX;
Respondent's Exhibit, RX; ALJ's Exhibit, ALJX.
[5]
Such circumstances are distinguishable from those in which a
specific item of evidence or segment of testimony has been
erroneously excluded by the ALJ. In the circumstances of this
case, statements and rulings by the ALJ throughout the hearing
reflect the arbitrary nature of the one day limitation placed on
the hearing and its detrimental effect on the full and fair
presentation of this case by the parties, as is required by the
APA. Cf. Bass v. Hoagland, 172 F.2d 205, 208-09 (5th Cir.
1949), cert. denied, 338 U.S. 816 (1949)(within context of
Rule 60(b) analysis, distinguishing judgment that is void because
reached without due process of law from a judgment based on a
mere procedural error. )
[6]
It is also noted that the contents of the American Welding
Society Bridge Welding Code may be subject to the taking of
official notice under Section 18.201. See 29 C.F.R.
§ 18.201.
[7]
Section 18.401 defines "relevant evidence" as "evidence having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence." 29 C.F.R.
§ 18.401. Section 24.5(e)(1)provides:
Evidence. Formal rules of evidence shall not apply,
but rules or principles designed to assure production
of the most probative evidence available shall be
applied. The administrative law judge may exclude
evidence which is immaterial, irrelevant, or unduly
repetitious.
[8]
A complainant is not required, however, to establish disparate
treatment in comparison with other employees, or other
whistleblowers, in order to establish retaliatory intent. See
DeFord v. Sec'y of Labor, 700 F.2d 281, 286 (6th Cir. 1983).
[9]
The ALJ did not err, however, in refusing to hear testimony
concerning corrective measures that MTS has taken since
Timmons' termination in order to comply with the findings of the
NRC, T. 111-12, 115, as such evidence would not be pertinent to
the mindset of MTS deciding officials at the time that Timmons
was terminated. Evidence of related action, corrective or
otherwise, taken by MTS following initiation of the NRC
investigation but prior to Timmons' termination is
relevant to the issue of the mindset of MTS deciding officials at
the pertinent time and may be adduced on remand.
[10]
The ALJ may nonetheless exclude evidence that is "unduly
repetitious," as provided under Section 24.5(e)(1). 29 C.F.R.
§ 24.5(e)(1); see n.4 supra; see also 5 U.S.C.
§ 556(d); 29 C.F.R. § 18.403.
[11]
Although the hearing need not be conducted in a rigid and
overly formal manner, the ALJ should not hesitate to apprise the
witnesses of basic standards of conduct during examination by
counsel, e.g., that it is not the role of the witness to
object on relevancy grounds to a question, or a line of
questioning, being posed by counsel. See 29 C.F.R.
§§ 18.611 (Mode and order of interrogation and
presentation), 18.36 (Standards of conduct), 18.37 (Hearing room
conduct); cf. T. 255 (Bruno), 276-78 (Kutt). It is noted
that Mark and Suzanne Mattingly, the owner of MTS and his wife,
appeared without legal counsel at hearing. T. 4-5. In those
circumstances, it is appropriate for the party, when being
examined as a witness, to raise such objections.
[12]
As indicated by the ALJ, T. 15, complainants are not required
to establish actual violations of NRC regulations by employers to
establish discriminatory treatment under the ERA. See Diaz-
Robainasv. Florida Power & Light Co., Case No. 92-
ERA-10, Sec. Dec., Jan. 19, 1996, slip op. at 11-12 nn.7, 8 and
cases cited therein. As indicated supra, however, it does
not necessarily follow that the results of an ensuing NRC
investigation would be irrelevant to the issue of retaliatory
intent.
[13]
At the close of the hearing, MTS indicated that it had acquired
evidence since its termination of Timmons that would provide
support for the termination. T. 300 (S. Mattingly). Evidence of
legitimate grounds for termination that is acquired by an
employer after the decision to terminate will not defeat a
discrimination complaint, although such evidence is relevant to
the issue of damages for which an employer is liable.
McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879
(1995); see Smith and Fitzpatrick v. Tennessee Valley
Authority, Case No. 89-ERA-00012, Sec. Ord., Mar. 17, 1995,
slip op. at 2-6.
