A second ALJ issued a Decision and Order on Remand on July 14, 1997, dismissing the case in its entirety. The ALJ's decision has been appealed to us by the Administrator. For the reasons discussed below, we reverse the ALJ's order of dismissal and remand the case to the ALJ to make the findings directed in our previous order.

   In April 1993, the hospital applied to the U.S. Department of Labor Employment and Training Administration to renew its INRA H-1A petition to employ four H-1A nonimmigrant alien nurses. To demonstrate need, the hospital attested to excessive nurse vacancy rates and unutilized bed rates and to the elimination or curtailment of essential health care services. In addressing labor safeguards, the hospital attested that employment of H-1A nurses would not adversely affect the wages and working conditions of U.S. nurses similarly employed and that the hospital's nurses consequently would be paid at least the prevailing wage. 8 U.S.C. §1182(m)(2)(A)(ii) and (iii); 20 C.F.R. §655.310(e). The hospital also attested that it would fulfill certain responsibilities under the program pertaining to the recruitment, retention and training of U.S. nurses. See O.R., slip op. at 3.

(3) Although the hospital complied with the INRA's prevailing wage provisions in payment of base wage rates, it may not have paid the correct shift and speciality unit differentials because it neglected to elicit this information from the State Employment Security Agency as required under the regulations; therefore the hospital had violated a condition attested to by failing to obtain complete information establishing the prevailing wage.

The ALJ ordered the hospital to determine whether any of its nurses had been paid an incorrect prevailing wage, including pay differentials, and to pay any wages due. U.S. Dep't of Labor, Administrator, Wage & Hour Division, Employment Standards Administration and Nurses PRN of Denver, Inc., Nurses PRN Suncoast, Inc. v. HCA Medical Center Hospital, Largo, Florida, ALJ Case No. 94-ARN-1, Dec. and Ord., May 10, 1995.

   The hospital apparently never made the determination ordered by the ALJ, but instead petitioned for review of the ALJ's decision. The contractors also petitioned for review of the decision.

   On June 28, 1996, the Board issued an order addressing two issues: (1) whether the contractors' nurses, who were displaced by H-1A nurses, were entitled to back pay; and (2) whether the case should be remanded for findings regarding the hospital's liability for failure to pay the prevailing rate to its nurses (including pay differentials). With regard to the first issue,

   On July 14, 1997, the ALJ dismissed the case for lack of evidence. The ALJ found that, although the hospital had failed to pay four H-1A nurses prevailing shift differentials, the Administrator had failed to prove the amounts due these nurses. The ALJ also found that the Administrator failed to prove that the hospital had paid any of its non-H-1A nurses incorrectly. This appeal followed.

   On review, the Administrator now argues that the ALJ abused his discretion by foreclosing investigation or discovery which would have permitted compliance with the Board's June 28, 1996, remand order. The hospital counters that dismissal is appropriate because the Administrator essentially waived further investigation. It argues specifically that the Administrator is directed, by regulation, to conduct any investigation, in its entirety, within 180 days of a complaint; that the Administrator seeks to investigate the very same issue that it investigated more than three years ago; and that the Administrator should bear the consequences of its failure to conduct a proper investigation in the first instance.

   I. Procedural Posture of the Case on Remand

U.S. Dep't of Labor, Administrator, Wage & Hour Division, Employment Standards Administration and Nurses PRN of Denver, Inc., Nurses PRN Suncoast, Inc. v. HCA Medical Center Hospital, Largo, Florida, ALJ Case No. 94-ARN-1, Dec. and Ord., May 10, 1995, slip op. at 10-11. This order that the hospital determine whether underpayments had occurred, and

to determine the amount of the underpayment, plainly recognized that the records needed to make such a determination remained in the possession of the hospital. The Board's later 1996 remand order called for precisely the same line of inquiry that had been ordered by the first ALJ. The Board thus anticipated cooperation by the parties when we remanded the case for further findings.

       A. The Parties' Motions on Remand

Respondent's Memorandum in Opposition to Plaintiff's Request to Perform Investigation or for Discovery dated February 21, 1997, at 2-3 (emphasis in original).

       B. The ALJ's Disposition on Remand

   Concurring with the hospital's argument, the ALJ denied the Administrator's request for investigation or discovery, declaring that

Although the 180 day period may not constitute an absolute bar, I find the cases cited by the government [Brock v. Pierce County, 106A S.Ct. 1834 (1986); Roadway Express v. Dole, 929 F.2d 1060 (1991)] to not be on point. Those cases dealt with the time limit of 120 days for issuance of a decision.

Here we are asked to permit new discovery years after the initial investigation, years after the investigation was required to be completed, and years after the trial of the matter. The basis of the request is that a mistake was made in failing to investigate properly in the first instance. The request to permit discovery is denied.

Fifth Order on Remand issued May 21, 1997, slip op. at 1-2. In the Decision and Order on Remand issued July 14, 1997, the ALJ dismissed the complaint for failure to produce the precise evidence that the Administrator had attempted to obtain by requesting further investigation or discovery. The ALJ compared the prevailing rates required by the State Employment Security Agency with the rates paid by the hospital to its four H-1A nurses, and stated:

Based on the [comparison], I conclude that [the hospital] failed to pay these four nurses the prevailing shift differentials in Pinellas County. [The Administrator] has failed to demonstrate that [the hospital] failed to pay the prevailing shift differentials to any of its other nurses. In addition, [the Administrator] has failed to fulfill its burden of proof as to the amount due these four nurses. Accordingly, because of the failure of [the Administrator] to sustain its burden of proof, this matter is dismissed.

Slip op. at 2-3.

   On appeal to the Board, the Administrator contends that the ALJ abused his discretion in denying the Department's requests for additional investigation or discovery, and then dismissing the case.

   II. Time Frames for Investigation

   Both the INRA and its implementing regulations contain limitations periods. The INRA provides that "the Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints" regarding attestations and that, under such process, the Secretary shall determine "within 180 days after the date [a] complaint is filed" whether a basis exists to make a finding that a facility has failed to meet a condition attested to or has misrepresented a material fact. In the event of such a determination, the Secretary shall provide notice and an opportunity for a hearing "within 60 days of the date of the determination." 8 U.S.C. §1182(m)(2)(E)(ii) and (iii). The INRA does not provide a limitation for issuance of the Secretary's findings following a hearing.

   The regulations provide that if the Administrator determines that there is reasonable cause to believe that a complaint warrants investigation, he "shall conduct an investigation within 180 days of the receipt of a complaint." 20 C.F.R. §655.405(c). After investigation, but also within 180 days of receiving the complaint, the Administrator "shall . . . issue a written determination,

stating whether a basis exists to make a finding that the facility failed to meet a condition of its attestation, or made a misrepresentation of a material fact therein ...." 20 C.F.R. §655.405(d). Any such determination "shall specify any sanctions imposed due to the violations." Id. Interested parties may request a hearing within 10 days of the Administrator's determination. 20 C.F.R. §655.420. An ALJ shall be assigned to hear a complaint upon receipt by the Chief ALJ of a hearing request. Hearings shall be convened within 60 days of the Administrator's determination. 20 C.F.R. §655.435. The regulations direct an ALJ to issue a decision within 90 days of receipt of the transcript of hearing. 20 C.F.R. §655.440. Interested parties may petition the Secretary for review of the ALJ's decision within 30 days of its issuance. 20 C.F.R. §655.445. Within 30 days of receipt of a petition, the Secretary shall notify the parties of an intent to review the ALJ's decision. The Secretary's final decision shall issue within 180 days of notification of intent to review. Id.

   Prior to the Board's remand in this case in 1996, development of the record had proceeded in an orderly manner subject to a degree of flexibility appropriate in an administrative forum. For example, following the Administrator's determination and prior to opening the hearing, the ALJ remanded the complaint to the Wage and Hour Division to consider the contractors' contention that additional violations existed. On review of the ALJ's decision, the Board remanded the case to the ALJ. Neither the INRA nor the regulations provide for a remand by an ALJ to the Wage and Hour Division or a remand by the Board to an ALJ. Remands nonetheless are employed routinely for purposes of rectifying legal errors. PPG Industries, Inc. v. United States, 52 F.3d 363, 365-366 (D.C. Cir. 1995).

   The second ALJ erroneously discounted case precedent cited by the Administrator in support of the reopening of the record. The 180-day limitation for conducting investigations at issue in the instant case carries none of the indicia that would divest the Administrator of the authority to investigate after expiration of the limitation. While their language may be mandatory, the statutory and regulatory provisions imposing the investigatory time limitation nowhere specify the consequences of a failure to meet the limitation. Ordinarily, if there is congressional or administrative intent to foreclose action in the event that a time limitation is not met, the statute or regulations specify consequences that flow from the failure to meet the limitation. Brock v. Pierce County, 476 U.S. 253, 259 (1986) (parallel limitations without specified consequences in Comprehensive Employment and Training Act and implementing regulations were "intended to spur the Secretary to action, not to limit the scope of his authority"). Nothing in the legislative or regulatory history of the matters at issue here suggests an intent to bar agency action beyond the limitations period. Conducting an investigation and issuing a determination may pose unanticipated difficulties, and the ability of the Administrator to meet the limitation may be subject to factors beyond his control. Absent any statement of contrary intent, such a limitation provides a projected timetable for agency action on a given complaint, rather than curtailing the agency's authority to resolve complaints if the time limitation is not met. Mandatory language that an agency "shall" act within a limitations period, standing alone, "does not divest [the agency] of jurisdiction to act after that time." Id. at 266.

   The Administrator was empowered to conduct further investigation in this case. Moreover, while the hospital argued that prejudice would result from further investigation, it failed to demonstrate the specific manner in which it would suffer prejudice. Absent a finding of prejudice, the mere passage of time over the course of the proceeding offers insufficient basis for denying the Administrator's motion. The ALJ's denial therefore constituted error.

   III. Abuse of Discretion

   The Board remanded the case to the ALJ with instructions "to determine whether [the hospital] failed to pay any of its nurses the prevailing wage . . . during the period of . . . attestation and, if so, the amounts due." In execution of the Board's order, the ALJ availed himself of a discovery device to avoid making the determination and to dismiss the proceeding. We agree with the Administrator that the ALJ abused his discretion in this instance.

   The hospital's objection to further investigation or discovery amounted to a motion for limitation or for a protective order. The scope of discovery under the Federal Rules of Civil Procedure and the regulations governing administrative hearings before ALJs is broad. Fed. R. Civ. P. 26-37; 29 C.F.R. §§18.13-18.23. The rules nonetheless permit adjudicators to impose discovery limitations under certain circumstances.

   One such limitation may arise in the event that "the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought." Fed. R. Civ. P. 26(b)(2). In this context, the hospital argued that the Administrator had waived further access to payroll records because she had investigated thoroughly once before.

   A second form of limitation is a protective order. The rules provide for protective orders, stating that, upon certification that the movant has attempted in good faith to resolve the dispute and for good cause shown, a court may "protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense" by ordering, inter alia, "that the disclosure or discovery not be had." Fed. R. Civ. P. 26(c); 29 C.F.R. §18.15 (provision for protective orders incorporated under ALJ rules of practice and procedure). For example, protective orders may issue to prevent use of discovery for purposes unrelated to a lawsuit. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984) (because of liberality of discovery, courts must be authorized to issue protective orders); Jennings v. Peters, 162 F.R.D. 120, 122 (N.D. Ill. 1995) (protective orders ensure that power of liberal discovery is not abused); Adolph Coors Co. v. American Ins. Co., 164 F.R.D. 507, 513-514 (D. Colo. 1993) (protective orders restrict the use that a party can make of information obtained through discovery). The process of issuing a protective order generally entails a balancing of interests, i.e., comparison of hardship to the party against whom discovery is sought with the probative value of the information to the discovering party. In re Eli Lilly & Co., Prozac Prod. Liab. Litig., 142 F.R.D. 454, 458 (S.D. Ind. 1992). In this case, the hospital's allegation that it would be affected adversely by further investigation or discovery suggests that it sought

protection. Under the law governing discovery, the party moving for a protective order bears the burden of showing that protection is warranted. Landry v. Air Line Pilots Ass'n Int'l, 901 F.2d 404, 435 (5th Cir.), cert. denied, 498 U.S. 895 (1990). In granting the hospital protection, the ALJ imposed the most limiting alternative under the rules preclusion of disclosure or discovery altogether.

   The Administrator, when initially investigating and issuing a determination in the case, found no violation as to payment of prevailing wage rates. The Administrator's finding thus had foreclosed development of a record on the issue of pay differentials. While the Administrator technically may have been able to obtain information contained in the hospital's payroll records, she had no reason at that juncture in the case to do so. The first ALJ effectively reversed the "no violation" finding with regard to shift and specialty unit differentials. Limitation under Fed. R. Civ. P. 26(b)(2) does not appear appropriate in these circumstances because the Administrator realistically was not accorded "ample" opportunity through discovery to secure the payroll information.

   Reopening the proceedings to receive evidence on an issue is entirely proper where, as here, an agency has erred legally by failing to consider differentials as part of the prevailing wage rate. Cissell Manufacturing Company v. U.S. Dep't of Labor, 101 F.3d 1132, 1136-1138 (6th Cir. 1996); PPG Industries, Inc. v. United States, supra 52 F.3d at 365-366. The first ALJ sought to develop a record on the issue when he directed the hospital to calculate the amount of underpayment. In denying the Administrator's request for further investigation or discovery because "a mistake was made in failing to investigate properly in the first instance," the second ALJ erroneously disregarded precedent permitting an agency to reopen proceedings for purposes of taking new evidence when its legal determinations are found to be erroneous.

   The hospital has failed to demonstrate that it made a good faith effort to resolve the dispute and that it had "good cause" for securing a protective order under Fed. R. Civ. P. 26(c) and 29 C.F.R. §18.15. A finding of good cause requires specific demonstration that disclosure of the requested information will cause a clearly defined and serious injury. Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (failure to sustain burden of demonstrating specific injury from public dissemination of privileged documents). Preclusion of discovery, as ordered by the ALJ in this case, is rare and requires a showing of "extraordinary" or "exceptional" circumstances. Kaiser v. Mutual Life Ins. Co. of New York, 161 F.R.D. 378, 380 (S.D. Ind. 1994); Bucher v. Richardson Hosp. Auth., 160 F.R.D. 88, 92 (N.D. Tex. 1994). The hospital's nonspecific claim of "unwarranted and unnecessary intrusion" falls well short of the requisite demonstration. Furthermore, the hospital makes no claim whatever to substantiate the element of "good faith effort" toward resolving a discovery dispute. The ALJ therefore abused his discretion in protecting the hospital from further investigation or discovery.

   The ALJ also abused his discretion by ignoring the procedural history of the case. The record before the first ALJ showed that the hospital failed to pay the prevailing wage for shift

differentials. (Indeed, the second ALJ cited this evidence of liability in his July 14, 1997, Decision and Order on Remand, slip op. at 2.) Accordingly, the ARB remanded the case for development of the record as to extent of liability, e.g., for payroll information supporting determinations as to the identity of nurses working shifts for which a differential was due, the number of hours worked and the amounts actually paid. The Administrator had not culled this information as part of the original investigation because of the Wage and Hour Division's finding of "no violation" on this issue; it was this finding of "no violation" that the first ALJ reversed, prompting the ALJ to order the hospital to determine whether its nurses had been underpaid. The hospital apparently failed to comply with the ALJ's order when it instead appealed the decision to the ARB. On review, the ARB did not reverse the first ALJ's finding that shift and speciality unit differentials comprised a portion of the prevailing wage, and we remanded for a determination of liability; therefore, further investigation or discovery was integral to securing the information required under the ARB's remand order. The second ALJ thus abused his discretion by curtailing any opportunity whatever for securing this information on remand.

   The Decision and Order on Remand issued on July 14, 1997, which dismissed the complaint, is REVERSED, and the Fifth Order on Remand issued on May 21, 1997, which denied the Administrator the opportunity to conduct further investigation or discovery, is REVERSED and VACATED. The case is REMANDED to the ALJ. The ALJ is directed to reopen the record and to obtain evidence from the parties, including the hospital, of any failure by the hospital to pay its nurses the prevailing wage, including pay differentials, and the amounts due. Based on the evidence thus obtained, the ALJ is directed to decide whether the hospital unlawfully failed to pay its nurses the prevailing wage, and to order appropriate relief.

   SO ORDERED.

       PAUL GREENBERG
       Chair

       E. COOPER BROWN
       Member

       CYNTHIA L. ATTWOOD
       Member