The support staff employee deposited the record at the designated location for pick-up by the courier service used by the Department of Labor to transfer correspondence between the main Department of Labor building and the Office of Administrative Law Judges. (Copy of transmittal letter referencing enclosed record to Chief Administrative Law Judge dated April 17, 2001, is attached to this order).
On September 6, 2001, a Department of Labor Administrative Law Judge, assigned to the High case, issued an order stating:
The formal file [in High ] has not been received. Several telephone calls have been made to personnel at the Administrative Review Board and at the docket Section of the Office of Administrative Law Judges. According to the Administrative Review Board, the formal file was sent, by messenger, to the Office of Administrative Law Judges on April 17, 2001. According to the Office of Administrative Law Judges, the file was never received. The formal file cannot be located and, apparently, is lost.
Accordingly, the parties are to confer and notify this Office in writing, how they wish to proceed.
We have contacted the courier service responsible for transporting the record, however, it has no record of picking up the record for delivery to the Office of Administrative Law Judges. We have also conducted a search of the Board's offices, but have not located the record.
Complainant High has filed several Motions with the Board in regard to the lost file. In Complainant's Emergency Motion Regarding Lost File, "Mr. High respectfully requests that ARB state on the record under oath the chain of custody of his DOL whistleblower case file, whether it was sent to Judge Hillyard, by what means, providing all documentation regarding the search for the file under oath." In Lockheed Martin Respondents' Response to Complainant's Emergency Motion Regarding Lost File, Lockheed Martin (Lockheed) states that as High's motion is not directed to Lockheed, it would take no position on the motion. However, Lockheed did indicate that it "will provide a copy of all pleadings and exhibits, and all correspondence to which DOL was either the sender or recipient, which the Lockheed Martin Respondents have in their possession." Lockheed further stated that it had so informed High and "provided an index of the known pleadings so that he may confirm that it is complete before any copying is undertaken."
High subsequently filed a Motion for Conference Call Hearing requesting an "on-the-record hearing by conference call today on the lost record in this case." Finally, High filed Complainant's Motion to Grant His Unopposed Motions Re: "Lost" Record and Motion to Remand for Hearing as to All Respondents and All Counts of the Complaint. In this Motion, High renews his Motion to FedEx File Back to ALJ Hillyard and "to cross-examine those persons with knowledge about the circumstances of the ‘loss' of the entire record in his case." In addition, he contends, "Since it does not have the record, ARB can hardly claim to have reviewed it. It follows that ARB must have never had the record or lost it several years ago." High further asserts that the ARB should amend its March 13, 2001 Decision and Order of Remand "to remand this entire case for trial on the merits as to all counts and all Respondents."
Lockheed, in response to this motion, characterizes High's request for an investigation under oath into the disappearance of the record as "a sideshow created from a feigned sense of hysteria to embarrass the ARB." Lockheed further states,
By his Motion, the Complainant seeks to regain the status he had prior to both the ALJ and ARB decisions. Respondents simply want to return to the status they were in when the record was lost. To do so is easy the record can be easily replaced by the Complainant or Respondents pursuant to 28 U.S.C. § 1734(b). Prior to utilizing such procedure, however, the Lockheed Martin Respondents have sought to replace the record by agreement of the parties and have offered to work with Complainant to ensure completeness of that replaced record.
The Board regrets the inconvenience to the parties caused by the necessity of reconstructing the lost file. However, the Board has explained fully in this Order the known facts regarding the lost record. High's allegations of possible misfeasance or malfeasance by any employee of the Board or of Respondent Lockheed Martin are baseless. Thus, the Board rejects High's demand for a hearing under oath regarding the lost record or a conference call to discuss the lost record.
Furthermore, as demonstrated by the General Counsel's April 17, 2001 letter returning the record to the Chief Administrative Law Judge, High's allegation that because the record is now lost, the Board did not review the record prior to rendering its decision in this case is as groundless as it is devoid of logic. Finally, in regard to High's renewal of his Motion requesting the Board to "Fed Ex" the record to the ALJ, the Board originally arranged for the transmittal of the record in response to this Motion. If the Board had the record, the Board would transmit it. However, because the Board does not have the record, it is not possible for the Board to transmit the record. Accordingly, High's Motions are DENIED .
FOR THE ADMINISTRATIVE REVIEW BOARD:
Janet R. Dunlop
[ENDNOTES]
1
