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Varnadore v. Secretary of Labor

Citation: 28 ELR 21102
(04/06/1998)

The court affirms the Secretary of Labor's decision that a complaint of retaliatory action brought by an Oak Ridge National Laboratory employee under the whistle blowing provisions of seven environmental statutes was time barred and upholds the Secretary's creation of the U.S. Department of Labor Administrative Review Board (ARB). The court first holds that the Secretary's decision that one of the employee's complaints was time barred was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Under the continuing-violation doctrine, a single timely act can save other acts that are time barred. But the mere fact that retaliation or discrimination occurred over a long period of time does not mean one can simply ignore statutes of limitations altogether. The Secretary found that the employee's supervisor did not make a threat to the employee when they had a conversation regarding the employee's possible relocation to a contaminated office. If the Secretary's decision in this regard is correct, then his collateral decision — that the complaint was time barred because no violative act occurred within the relevant time period — is quite clearly correct as well. Indeed, the Secretary's decision is supported by substantial evidence because it is completely in accord with the supervisor's testimony and even roughly in accord with the employee's version of the event.

Next, the court holds that the Secretary's establishment of the ARB and delegation to it of final decisionmaking responsibility is authorized under the Appointments Clause of the U.S. Constitution and federal law. The members of the ARB are the type of inferior officers that the Appointments Clause allows the heads of departments, such as the Secretary of Labor, to appoint. Further, Congress has imbued the Secretary with the authority to appoint inferior officers under the Appointments Clause. Because the Appointments Clause was not offended by the creation of the ARB, the court concludes that it is unnecessary to consider the employee's Presentment Clause challenge.

Counsel for Petitioner
Edward A. Slavin Jr.
Law Offices of Edward A. Slavin Jr.
2829 Timmons La., Houston TX 77027
unlisted

Counsel for Respondent
Christine N. Kohl
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Siler and Hood,* JJ.