1 This appeal has been assigned to a panel of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May 3, 1996).
2 In addition to the ERA charge, the Complainants allege violations of the Clean Air Act ("CAA"), 42 U.S.C.A. §7622 (West 1995), the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.A. §9610 (West 1995), the Toxic Substances Control Act ("TSCA"), 15 U.S.C.A. §2622 (West 1998), the Safe Drinking Water Act ("SDWA"), 42 U.S.C.A. §300j-9(i) (West 1991), the Solid Waste Disposal Act, ("SWDA") 42 U.S.C.A. §6971 (West 1995).
3 LMES is a wholly owned subsidiary of Lockheed Martin Corporation ("LMC"). It is not clear why the Coxes named LMC, the Oak Ridge Operations Office and the Department of Energy as respondents in this case.
4 At the time the Coxes were terminated from their jobs at Oak Ridge in 1996, the Labor Department's Wage and Hour Division received and investigated whistleblower complaints under the Environmental Acts and the ERA. This function later was transferred to the Department's Occupational Safety and Health Administration. See 62 Fed. Reg. 111 (Jan. 2, 1997), corrected 62 Fed. Reg. 8085 (Feb. 21, 1997).
5 In his analysis, the ALJ first appears to sweep together the ERA and the Environmental Acts; however, his decision then focuses only on the ERA aspects of the complaint. See RD&O at 81, 87.
6 In an Order striking an attorney's brief in Pickett v. TVA, ARB No. 00-076, ALJ Nos. 99-CAA-25, 00-CAA-9 (ARB Nov. 2, 2000), we noted our concern that vitriolic attacks on administrative law judges are inconsistent with a lawyer's ethical obligations, and in any event cannot substitute for sound legal argument:
While counsel . . . has the right to criticize rulings of the ALJ with which his client disagrees, he has no right to engage in disrespectful and offensive personal attacks upon the ability and integrity of the ALJ; such attacks violate counsel's "professional obligation to demonstrate respect for the courts." [Williams v. Lockheed Martin Corp., ARB Nos. 99-054/064, ALJ Nos. 98-ERA-40/42, (ARB Sept. 29, 2000)] at 6. Accord ABA Model Rules of Professional Conduct, Preamble, Rules 3.5 and 8.2 (1999).
The requirement that counsel refrain from immaterial, offensive excoriation of the ALJs before whom he appears, does not conflict with the counsel's ethical duty to represent his clients "with zeal and fidelity within the rules." Rhesa Hawkins Barkdale, The Role of Civility in Appellate Advocacy, 50 South Carolina Law Review, 573, 577 (1999). Quite to the contrary, "the use of odiums, sarcasm, and vituperative remarks have no place in a brief and are wholly unwarranted. Frankly, resort to the use of such statements is an indication of a lack of confidence in the law and the facts to support the position of the one using them." State ex rel. Dyer v. Union Electric Co., 312 S.W.2d 151, 154 (Mo. Ct. App. 1958). A brief containing such invective ordinarily should be stricken. AccordDranow v. United States, 307 F.2d 545, 549 (8th Cir. 1962).
7 In an environmental case, the employer must meet that burden by a preponderance of the evidence, while in an ERA case, the burden must be met by clear and convincing evidence. Passaic Valley Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474 (3d Cir. 1993); 42 U.S.C. §5851(b)(3)(C), (D).
8 The Coxes assert, in a conclusory manner, that the ALJ erred in finding that they did not engage in protected activity. Because we conclude that the Coxes' termination by LMES was not unlawful, it is unnecessary for us to review the ALJ's findings that the Coxes did not engage in protected activity. RD&O at 82-83. Accordingly, we express no opinion on these findings, neither adopting nor reversing them.
9 The Coxes have also filed with the Board a number of objections to the RD&O. For example, they assert that the ALJ erred by 1) "refusing to grant the Coxes' motion for default judgment . . . making scattered factual findings on witness testimony, witness-by-witness, rather than by topic, failing to resolve witness conflicts or making proper credibility findings or discussing the contents of most exhibits . . . making superficial exculpatory legal conclusions not supported by substantial evidence, failing to organize any of his conclusions by paragraph numbers . . ."; and 2) "failing to find there was no evidence that Captain Cox was not physically qualified to carry a weapon . . . ignoring the fact that Captain Cox's PPR ratings by his supervisor, Commander Williams, were reduced by respondent's management . . . erred on layoff decision dates, attempting to confuse tentative contingency plans with a layoff decision . . . "). The Coxes have also filed a number of motions including a Motion for Oral Argument; Motion to Grant Unopposed Motion for Summary Reversal; and Motion to Issue Show Cause Order regarding Disqualification of Counsel for Lockheed Martin. We have reviewed all the Coxes' motions and objections; we find them to be without merit, and therefore deny them. They do not warrant a separate discussion in this opinion.