Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Issue date: 28Aug2001
CASE NO. 2001-ERA-0003
IN THE MATTER OF:
HUGH K. TURPIN,
Complainant,
v.
LOCKHEED MARTIN CORPORATION,
LOCKHEED MARTIN ENERGY SYSTEMS, INC,
and JAMES H. BARKER
Respondents,
ORDER DENYING REQUEST FOR REMAND
Complainant, Hugh K. Turpin, requests by letter dated August 20, 2001 to Chief Judge John Vittone that this complaint filed pursuant to Section 211 of the Energy Reorganization Act of 1974, Section 312 of the Clean Air Act, Section 110(a) of the Comprehensive Environmental Response, Compensation, and Liability Act, Section 507 of the Federal Water Pollution Control Act, Section 1450 of the Safe Drinking Water Act, Section 7001 of the Solid Waste Disposal Act, and Section 23(a) of the Toxic Substances Control Act be remanded to the Occupational Safety and Health Administration (OSHA) for further investigation. In support, complainant states that OSHA failed to fully investigate the merits of his complaint and assigned the case to an investigator who is biased.
In Billings v. Tennessee Valley Authority, 91-ERA-12 (ARB June 26, 1996), complainant sought remand of the matter to the reviewing administration for further investigation. The Board affirmed the ALJ's ruling denying remand because complainant did not establish a legitimate reason for remand, but only attacked the merits of the finding of nondiscrimination. The Board added that the initial findings were not binding on the ALJ because the regulations accord complainants a right to de novo hearings on the merits of complaints. Thus, the Board ruled that "any arguable flaws in the ... investigation or findings would not adversely affect litigation of his case before the ALJ." Slip op. at 8-9. See also, Egenrieder v. Metropolitan Edison Co., 85-ERA-23 (Sec'y Apr. 20, 1987) (noting that neither the ERA nor the regulations specifically contemplate a remand for further investigation).
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Similar to the complaint in Billings, any arguable flaws in the investigation here would not adversely affect litigation in this case before an Administrative Law Judge. Complainant is provided under 29 C.F.R. § 24.6 with the opportunity to present the evidence necessary to establish his complaint and, if necessary, to pursue formal discovery to further develop the evidence to support the merits of his complaint before the presiding Administrative Law Judge. See Khandelwal v. Southern California Edison, (ARB Nov. 30, 2000).
ORDER
Accordingly, the request to remand the complaint filed by Hugh K. Turpin for further investigation by OSHA is hereby DENIED. The case will be assigned to an Administrative Law Judge, forthwith.
