[Note: caption was changed in Sec'y's order of Oct. 4, 1995 from Martin Marietta Energy
Systems, Inc. to Lockheed Martin Energy Systems, Inc.]
DATE: September 11, 1995
CASE NOS. 94-CAA-2
94-CAA-3
IN THE MATTER OF
C. D. VARNADORE,
COMPLAINANT,
v.
OAK RIDGE NATIONAL LABORATORY
AND LOCKHEED MARTIN ENERGY
SYSTEMS, INC.,[1]
RESPONDENTS.
BEFORE: THE SECRETARY OF LABOR
PRELIMINARY ORDER
On June 23, 1995, the Administrative Law Judge (ALJ) issued
a Recommended Order Awarding Attorney's Fee and Cost [sic] (R.
O.) in this case. On June 28, 1995, Complainant C.D. Varnadore
through his attorneys filed a Motion for Preliminary Order
pursuant to 42 U.S.C. § 5851(b)(2)(A) & (B).[2] On July 5,
1995, the Office of Administrative Appeals issued an order
establishing a briefing schedule relating to the R. O. That
order did not limit briefs to discussion of the propriety of
issuing a preliminary order pursuant to Section 5851(b)(2)(A) &
(B).
In the meantime, on July 14, 1995, LMES filed its Response
in Opposition to Complainant's Request for Interim Order of
Attorney's Fees (Response). That document was not served on
Counsel for Varnadore until July 20, 1995.[3] On July 20, 1995,
LMES filed its Brief in Opposition to the Recommended Order
Awarding Attorney's Fees and Costs. Briefs have already been
filed by the parties regarding the ALJ's recommended decisions on
[PAGE 2]
the merits of this case ([Recommended] Order Granting Summary
Judgment, Recommended Order of Dismissal, and Recommended
Decision and Order (R. D. and O.)).
A Secretarial decision on the merits of the ALJ's award of
attorney's fees and costs must await a Secretarial decision on
the substance of this case, which will be issued in due course.
This Order will address only the issue whether Varnadore is
entitled to a preliminary order pursuant to Section 5851(b)(2)(A)
& (B). For the reasons articulated below I conclude that he
is.[4]
In 1992 the whistleblower provision of the Energy
Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 (1988),
was amended in several respects by Section 2902 of the
Comprehensive National Energy Policy Act of 1992 (CNEPA), Pub. L.
No. 102-486, 106 Stat. 3123, 3124 (Oct. 24, 1992). The amended
provision is applicable to this case, which was filed subsequent
to the effective date of the CNEPA. It provides in pertinent
part:
Upon the conclusion of [a public hearing before an ALJ]
and the issuance of a recommended decision that the
complaint has merit, the Secretary shall issue a
preliminary order providing the relief prescribed in
subparagraph (B), but may not order compensatory
damages pending a final order.
* * * *
(B) If, in response to a complaint filed under
paragraph (1), the Secretary determines that a
violation of subsection (a) of this section has
occurred, the Secretary shall order the person who
committed such violation to (i) take affirmative action
to abate the violation, and (ii) reinstate the
complainant to his former position together with the
compensation (including back pay), terms, conditions,
and privileges of his employment, and the Secretary may
order such person to provide compensatory damages to
the complainant. If an order is issued under this
paragraph, the Secretary, at the request of the
complainant shall assess against the person against
whom the order is issued a sum equal to the aggregate
amount of all costs and expenses (including attorneys'
and expert witness fees) reasonably incurred, as
determined by the Secretary, by the complainant for, or
in connection with, the bringing of the complaint upon
which the order was issued.
[PAGE 3]
42 U.S.C. § 5851(b)(2)(A) & (B) (1988 and Supp. V).[5]
Pursuant to this provision Varnadore has requested a preliminary
order of attorney's fees and costs in the amount of $27,174.83.
Varnadore has also requested an order preliminarily providing the
relief contained in the R. D. and O. issued on October 17, 1994,
which required that LMES "expunge from complainant's records the
written appraisal of his performance for fiscal year 1992; and
not take any adverse actions against Mr. Varnadore without good
cause shown." R. D. and O. at 11.
The plain meaning of Section 5851(b)(2)(A) & (B) clearly
requires a preliminary order enforcing the R. D. and O.
provisions regarding Varnadore's performance appraisal and
adverse actions against Varnadore, and LMES has not suggested
otherwise in its filings before me. Whether Varnadore is
entitled to a preliminary award of attorneys fees is the subject
of contention, however. LMES asserts that the Section 5851
preliminary order provision does not apply to attorney's fees and
costs. As I discuss below, none of LMES' arguments persuade me
that a preliminary order of attorneys fees is not required by
Section 5851.
LMES argues statutory construction and legislative history
of the amended ERA whistleblower provision lead to the conclusion
that the provision does not permit a preliminary order of
attorney's fees. Brief in Op. at 7-10. I disagree. The plain
meaning of the amended ERA provision supports the conclusion that
an ALJ's recommended award of attorney's fees requires that the
Secretary issue a preliminary order awarding such fees.
Subparagraph A states that where, as here, the ALJ issues a
recommended decision in favor of the complainant,[6] the
Secretary "shall issue a preliminary order providing the relief
prescribed in Subparagraph (B), but may not order compensatory
damages pending the final order."
Subparagraph B is the ERA's general provision outlining the
types of relief that can be awarded in whistleblower actions.
That relief may consist of an order: 1) to abate the violation;
2) to reinstate the complainant with compensation, including back
pay, and terms, conditions, and privileges of employment; 3) to
pay compensatory damages; and 4) to pay the "aggregate amount of
all costs and expenses (including attorney's and expert witness
fees) reasonably incurred, as determined by the Secretary
. . . ." 42 U.S.C. § 5851(b)(2)(B) (1988 and Supp. V).
Subparagraph A clearly refers to the "relief" set forth in
Subparagraph B with only one explicitly stated exception --
compensatory damages. There is no textual reason to treat an
ALJ's recommended award of attorney's fees and costs any
differently than Subparagraph A treats a recommended award of
back pay, or an abatement order. All are explicitly included in
[PAGE 4]
Subparagraph B and therefore fall within Subparagraph A's mandate
that the Secretary issue a preliminary order.
LMES argues that an employee is entitled by Subparagraph B
to attorney's fees only if an award of such fees is contained in
a final order of the Secretary. Brief in Op. at 7. Since the
Secretary has not yet issued a final order in this case, LMES
argues, there is no Subparagraph B order upon which to base the
attorney's fees award. This argument ignores both the language
and purpose of Subparagraph A. None of the relief
ordered by the ALJ in an ERA whistleblower case is "final." The
order of the ALJ is recommended. It is the Secretary who
must make the final agency decision regarding the merits of the
case and the relief to be awarded, including the amount of
attorney's fees and costs. The evident purpose of amended
Subparagraph A is to assure that the complainant receives all of
the relief that the ALJ determined the complainant was entitled
to, with the sole exception of compensatory damages, pending the
final decision by the Secretary on all issues. There is no more
reason, based upon the language of Subparagraph B, to exclude
attorney's fees and costs from the compass of the preliminary
order provision than there is to exclude back pay, which clearly
is subject to a preliminary order.
Contrary to LMES' assertion, the legislative history does
not require the exclusion of attorney's fees from a preliminary
order. The remarks of Representative Ford, upon which LMES
relies, should not be read to exclude attorney's fees from the
ambit of the Subparagraph A preliminary order. See Brief
in Op. at 9.[7] On the floor of the House of Representatives,
Representative Ford explained the preliminary order provision as
reported by the conference committee:
To remedy the long delays in obtaining relief for
complainants with meritorious cases, the conference
agreement amends section 210(b)(2)(A) of the Energy
Reorganization Act to require the Secretary to order
interim relief for any complainant who prevails at the
hearing level. Once an Administrative Law Judge
determines that the complaint has merit, the Secretary
must, without delay, order the employer to abate the
violation and reinstate the complainant to his or her
former position together with the compensation,
including [b]ack pay, terms, conditions, and privileges
of his or her employment. No award of compensatory
damages may issue, except as a final order of the
Secretary.
138 Cong. Rec. H 11445 (daily ed. Oct. 5, 1992). I do not read
[PAGE 5]
Representative Ford's failure to mention attorney's fees and
costs as dispositive of the issue.
The legislative history of the CNEPA whistleblower
amendments is sparse. The preliminary order provision was added
in conference committee, but the Conference Report does not
discuss it or any of the other changes in the ERA whistleblower
provision. H.R. Conf. Rep. No. 1018, 102d Cong., 2d Sess.
(1992). As I have discussed above, the plain meaning of the
amended provision is that attorney's fees are subject to a
preliminary order. "The plain meaning of legislation should be
conclusive, except in the 'rare cases [in which] the literal
application of a statute will produce a result demonstrably at
odds with the intentions of its drafters.' Griffin v. Oceanic
Contractors, Inc., 458 U.S. 564, 571 (1982)." United
States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242
(1989). Even if I were to find a conflict between the language
of the statute and Congressman Ford's remarks I would still be
constrained to rely upon the statutory language. "Where [the
statute] contains a phrase that is unambiguous -- that has a
clearly accepted meaning in both legislative and judicial
practice -- we do not permit it to be expanded or contracted by
the statements of individual legislators or committees during the
course of the enactment process." West Virginia University
Hospitals v. Casey, 499 U.S. 83, 98-99 (1991).
LMES argues that attorney's fees and costs can only be
awarded to a prevailing party, and whether Varnadore is a
prevailing party cannot be determined until there is a final
order on the merits. Response at 3. This argument is
insubstantial. The obvious purpose of the amendment to
Subparagraph A is to provide a complainant who receives a
favorable ALJ recommended decision with relief at the earliest
possible time. Thus the complainant must be preliminarily
awarded back pay and be reinstated if he has been terminated, and
he must be accorded the same terms, conditions, and privileges of
employment that he possessed. Similarly, he must be relieved of
the financial burden of his attorney's fees and costs.[8] There
is no reason to suspect that Congress intended to exclude this
category of relief when it explicitly excluded only compensatory
damages.
LMES asserts that a preliminary award of attorney's fees may
be difficult to recoup if LMES ultimately prevails on the merits
of the case or on its arguments that the fee award recommended by
the ALJ is too generous.[9] LMES suggests that the "silence of
the ERA" on the recoupment issue lends support to its argument
that a preliminary order of attorney's fees "is neither proper
nor contemplated by the ERA." Response at 4. It need only be
noted that Congress was also silent regarding possible recoupment
[PAGE 6]
of back pay in the event that the employer ultimately prevails,
yet it undeniably intended that back pay be preliminarily
awarded. Further, given the authority contained in 29 C.F.R.
§ 18.36 (1994), it is unlikely that recoupment of attorney's
fees will present a significant problem.
Finally, LMES argues that a statutory provision that allowed
the preliminary award of attorney's fees would constitute a
denial of substantive and procedural due process. Brief in op.
at 10-14. LMES correctly notes that I do not have the authority
to declare a statutory provision unconstitutional. Id. at
14. See Oestereich v. Selective Serv. System Local Bd.,
393 U.S. 233, 242 (1968) (Harlan, J., concurring); Public
Util. Com. v. United States, 355 U.S. 534, 539 (1958);
OFCCP v. Priester Construction Company, Case No. 78-OFCCP-
11, Sec. Dec., Feb. 22, 1983, slip op. at 36-38. Moreover, I do
not find it necessary to construe the provision in such a way as
to avoid the constitutional infirmity which LMES suggests exists.
CONCLUSION
I find none of LMES' arguments against a preliminary order
of attorneys fees in this case persuasive. Therefore LMES is
preliminarily ordered to:
1) Expunge from Mr. Varnadore's records the written
appraisal of his performance for fiscal year 1992, and not take
any adverse actions against him without good cause shown; and
2) Pay Counsel for Mr. Varnadore the sum of $27,174.83, to
be distributed in accord with the R. O. at 4.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
Effective May 19, 1995, the name of Respondent Martin Marietta
Energy Systems, Inc. was changed to Lockheed Martin Energy
Systems, Inc. The case caption has been changed accordingly.
[2]
On June 30, 1995, Respondent Lockheed Martin Energy Systems,
Inc. (LMES), filed a petition to review the ALJ's R. O. Cases
brought under the ERA and other environmental whistleblower
provisions are automatically reviewed by the Secretary.
See 29 C.F.R. § 24.6 (1994). Therefore it was not
necessary for LMES to file its petition.
[3]
Because of the late service of that document Counsel for
Varnadore requested permission to file its brief in support of
the R. O. as a reply brief instead of filing simultaneously with
LMES on July 20, 1995. That request is granted. Varnadore's
Reply Brief shall be filed within ten days of receipt of this
order.
[4]
This is an issue of first impression. Therefore, I discuss it
in detail.
[5]
Subparagraph B was not amended by the CNEPA. On March 16,
1994, the Secretary of Labor proposed regulations to implement
the CNEPA amendments to the ERA. 59 Fed.Reg. 12506. These
regulations have not yet been finalized.
[6]
The specific language is "a recommended decision that the
complaint has merit." The provision does not define "merit." In
the absence of any limiting language I conclude that a complaint
"has merit" if the complainant prevails on any of his or her
claims and relief is ordered. Thus, this complaint "has merit"
for purposes of Section 5851.
[7]
LMES argues that Congress chose to limit the types of
preliminary relief that could be ordered to those which were not
"substantial," and thus could not have meant to include
attorney's fees. Brief in Op. at 9. However, as LMES points
out, Congress clearly intended recommended back pay awards to be
included in a preliminary order. Although back pay may often be
a relatively small sum of money, given the statutory time
limitations applicable to the disposition of ERA cases, LMES is
well aware that those time limitations are routinely waived,
particularly in complex cases. For example the complaint in this
case was filed with the Department of Labor on June 9, 1993, and
the R. D. and O. was not issued until October 17, 1994. If the
alleged discrimination against Varnadore had consisted of
termination, he would have been entitled to a Secretarial
preliminary order of back pay for a period of sixteen months,
which probably would have exceeded the recommended attorney's fee
award in this case.
Moreover, the CNEPA also extended the time for filing an ERA
whistleblower complaint to 180 days. 42 U.S.C. § 5851(b)(1)
(1988 and Supp. V). Thus, a full six months of back pay
liability may accrue even before a complaint is filed.
[8]
LMES assumes that a complainant does not initially shoulder the
economic burden of attorneys fees and costs, because
complainant's counsel absorbs those expenses pending a final
outcome in the case. Brief in Op. at 9-10. Financial
arrangements between attorney and client vary from case to case,
and there are certainly situations where a complainant may be
required to pay attorney's fees and expenses as they are
incurred. I am not willing to craft an interpretation of the
Section 5851 amendments based upon unsupported generalizations
regarding attorney-client relationships in ERA whistleblower
cases.
[9]
LMES does not suggest that I determine, in the context of a
preliminary order, whether the attorney's fee award is
reasonable. That determination must await the decision on the
merits of the case.
