ARB CASE NOS. 99-054
99-064
ALJ CASE NOS. 98-ERA-40
98-ERA-32
DATE: July 13, 1999
In the Matter of:
HARRY L. WILLIAMS,
SHERRIE G. FARVER,
COMPLAINANTS,
v.
LOCKHEED MARTIN CORPORATION,
LOCKHEED MARTIN ENERGY SYSTEMS,
INC.,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant
Edward A. Slavin, Esq., Deerfield Beach, Florida
For the Respondent
Charles W. Van Beke, Esq., Wagner, Myers & Sanger, P.C., Knoxville,
Tennessee
ORDER
On June 22, 1999, Complainants Sherrie Farver and Harry L. Williams filed
a "Request for Extension of Time and Objection to Cynthia Atwood [sic] Deciding This Case."
Respondent Lockheed Martin does not object to the Complainants' request for a two-week extension of
time to file their rebuttal brief. However, Lockheed states that it has found no basis upon which to object
to, or exclude Member Attwood.
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In particular, Complainants allege that "It appears . . . that Ms. Atwood's [sic]
serving on any case involving DOE or OSHA or the undersigned counsel would at best be an
appearance of impropriety." Complainants' allegation of an appearance of impropriety is based on
a Memorandum from Richard Fairfax, OSHA's Director of the Directorate of Compliance Programs, to
John B. Miles, Jr., Regional Director, Occupational Safety and Health Administration, dated February 19,
1999. Fairfax's Memorandum apparently was written in response to correspondence that OSHA received
from Complainants' counsel raising concerns about whistleblower investigations the OSHA Region VI
office was performing. Fairfax states in his Memorandum that Complainants' counsel previously
corresponded with the Secretary about these concerns, and raised similar complaints about investigative
work in other OSHA regional offices. Fairfax also states in his Memorandum that Complainants' counsel
"has also asked for the recusal of all Administrative Law Judges who have presided over hearings
for his clients, and made charges against Chief Administrative Law Judge John Vittone and Administrative
Review Board Member Cynthia Atwood [sic]."
Complainants contend that the Fairfax Memorandum's reference to ARB Member
Attwood "raises a clear question as to whether there was any an [sic] ex parte
communication between Mr. Fairfax and a member of the ARB or its staff on matters being litigated before
them." Lockheed responds that the Memorandum "conveys none of the facts, implications,
or arguments contained in the complainants' objection."
The Board, of course, must consider carefully the allegation that a Board Member's
participation in a case would raise an appearance of impropriety. However, we strongly disagree with
Complainants' assertion that Fairfax's Memorandum raises a "clear" question as to the
existence of any ex parte communication, whether direct or indirect, between Board Member
Attwood and Fairfax. Member Attwood does not know Richard D. Fairfax, and to her knowledge has
never had any direct or indirect communication with him. No Board Member has communicated with
Fairfax, and we are not aware that any member of the Administrative Review Board's staff has
communicated with Fairfax. We therefore conclude that Member Attwood's consideration of
Complainant's case would not create an appearance of impropriety because Complainants' allegation that
Member Attwood possibly engaged in ex parte communication with Richard Fairfax is baseless.
Accordingly, Complainants' objection to Member Attwood's consideration of these cases is
DENIED.
On June 24, 1999, Respondent Lockheed filed its response brief and a
"Motion for Permission to File Brief which Exceeds Page Limitations." By order dated July
12, 1999, we denied this motion. We have returned Lockheed's briefs and given Lockheed two weeks
from the receipt of the Board's order to submit a brief in conformance with the page limitations established
in the Board's April 20, 1999 scheduling order. Complainants may file a rebuttal brief, exclusively
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responsive to the reply brief and not exceeding ten (10) double-spaced typed pages, on or before
August 26, 1999. Accordingly, Complainants' Motion for an Extension of Time is
DENIED, as it is now moot.