U.S. Department of Labor Office of Administrative Law Judges
525 Vine Street, Suite 900
Cincinnati, OH 45202
Date: December 28, l998
Case Nos. 93-CAA-l
92-CAA-2, 5
93-CAA-l
94-CAA-2, 3
In The Matter Of:
C. D. VARNADORE,
Complainant,
v.
OAK RIDGE NATIONAL LABORATORY,
LOCKHEED MARTIN ENERGY SYSTEMS, INC.,
AND LOCKHEED MARIETTA CORPORATION,
Respondents.
ORDER DENYING MOTIONS TO REOPEN CASES AND TO SUPPLEMENT RECORDS
On October, 19, 1998, the Complainant in the above-captioned matters,
through counsel, filed motions to reopen cases and to supplement the record in Case Numbers: 93-CAA-1, 92-CAA-2, 5 and 94-CAA-2, 3. As grounds for his motion to reopen the cases, the
Complainant avers that they were not decided under the correct legal standards. In support thereof
the Complainant points to two Supreme Court decisions, Faragher v. City of Boca Raton,
118 S. Ct. 2275 (1998) and Burlington Industries v. Ellerth, 118 S. Ct. 2257 (1998), which
he contends are now governing authority for whistleblower cases adjudicated by the United States
Department of Labor (DOL).
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As grounds for his motion to supplement the records, the Complainant alleges
that certain statements of former Secretary of Energy, Hazel O'Leary, constitute new and material
evidence reflecting the existence of hostile attitudes toward whistleblowers at Department of Energy
(DOE) sites.
On October 29, 1998, the Respondent Lockheed Martin Energy Systems, Inc.,
(Lockheed Martin) through counsel, filed a motion to dismiss the motions filed by the Complainant.
Therein, Lockheed Martin based its motion on the following:
1. Neither the Administrative Review Board (ARB) nor the Office of
Administrative Law Judges (OALJ) have jurisdiction of this case.
2. As a result of the judgment entered by the Sixth Circuit Court of Appeals
in Varnadore v. Secretary of Labor, et al, 141 F.3d 625, (1998),
further proceedings in this matter are absolutely barred by the claim
preclusion doctrine.
3. The Complainant's motion under Rule 60(b) [Federal Rules of Civil
Procedure] is without merit as a matter of law.
4. The Complainant's counsel has multiplied these proceedings
unreasonably, vexatiously and in bad faith by filing a frivolous motion to
reopen the record. Sanctions should be imposed.
On November 2, 1998, the DOE, by counsel, filed its response to the
Complainant's motions. In its response opposing the Complainant's motions the DOE essentially
joined in the arguments advanced by Lockheed Martin. The DOE further argued, however, that even
if the Sixth Circuit's decision did not preclude further proceedings, neither the Farragher
nor Burlington Industries decisions, supra, are relevant to the jurisdictional issues
raised by the Complainant's motions.
On November 9, 1998, the Complainant filed a request for leave to file
responses to the responses of Lockheed Martin and DOE due to the "...cast aspersions and
attempts to chill protected activity emanating from Respondents...." Based on my ruling
denying the Complainant's initial motions herein, the Complainant's request is denied.
On November 6, 1998, the Complainant requested for oral argument before
the undersigned. The Complainant proposed to argue the motions herein on November 17, 1998,
following a pre-hearing discovery conference in an unrelated matter before another administrative
law judge. The Complainant suggested that oral argument "would be in the public
interest" and could assist me in ruling upon the outstanding motions. On November 9, 1998,
Lockheed Martin filed an opposition to the request. The DOE also filed an opposition to the request
on November 19, 1998. Having determined that oral argument would neither be in the public
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interest nor of any assistance to me in deciding the Complainant's motions, I denied the
Complainant's request on November 16,1998.
On November 12, 1998, the DOE filed a request for leave to file responses to
the Complainant's November 9, 1998 request for leave for additional response. As I have denied
the Complainant's request, DOE's request is likewise denied.
Findings and Conclusions:
At the outset, I have to confess that I am somewhat bewildered as to why the
Complainant filed his motions with me. The motions are captioned with case numbers of cases to
which I have never been assigned. The only case involving this Complainant to which I have been
assigned is 95-ERA-1. I issued a Recommended Order of Dismissal in that case on September 20,
1995. It appears that the case numbers referenced by the Complainant in the instant motions were
cases previously assigned to Judges Clarke and von Brand, both of whom are now retired. Although
the case to which I was assigned (95-ERA-1) was consolidated with certain of those cases assigned
to Judges Clarke and von Brand for consideration on appeal to the Sixth Circuit, it appears that the
Complainant's motions probably come to me by default as the last remaining member of those who
had been associated with the earlier cases.
In his motions the Complainant states that, "[a]pplying the correct legal
standard requires that...[I]...be appointed to consider the application of [the Supreme Court] cases
to the entire Varnadore matter, or that [Judges von Brand or Clarke] now be brought back as a
rehired annuitant to reweigh the evidence under the correct legal standard...." Since it appears
that the motions were only filed with me, it seems that the Complainant is asking that either I appoint
myself to rehear these cases or that I direct that Judges Clarke or von Brand be brought out of
retirement to do so. The short answer to what the Complainant is asking is that I have no authority
to do any of the things he asks. 29 C.F.R. §24.6
As pointed out by both Lockheed Martin and the DOE, these cases were
argued before the Sixth Circuit Court of Appeals which dismissed them. (Varnadore v.
Secretary of Labor, 141 F.3d 625 (1998)). No appeals were taken by the Complainant to the
dismissals. The court did not remand any of the cases to the ARB or to any of the administrative law
judges who decided the cases below.
The Complainant fails to state any theory which would give the undersigned,
Judges Clarke or von Brand, or the ARB any remote authority to reopen the records in any of these
cases at this juncture. Moreover, it appears that the Complainant is not asking that I reopen the
record in 95-ERA-1, but rather to reopen the records in cases assigned to other administrative law
judges which were later considered and decided on the Complainant's appeals to both the ARB and
the Sixth Circuit Court of Appeals. Even if I had the authority to revisit my own decisions, I
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certainly do not have the authority to second guess what has been done by other administrative law
judges or appellate bodies.
Finally, the Complainant's motions seem to ignore the larger question of
jurisdiction. I am currently not assigned to any cases involving this Complainant. That being so,
I do not have any jurisdiction to decide procedural matters in cases not assigned to me.
Varnadore v. Oakridge National Laboratory, et al, ARB Case No. 98-119 (May 14, 1998).
Therefore, the Complainant's motions must be denied on these grounds as well.
ORDER
IT IS ORDERED, that the Complainant's Motions To Reopen Records and
to Supplement Records are hereby DENIED.
