Voluntary dismissal of ERA whistleblower complaints are covered
by Rule 41 of the Federal Rules of Civil Procedure. Rainey v.
Wayne State University, 90-ERA-40 (Sec'y Jan. 7, 1991) (order
to show cause), slip op. at 3, dismissed, (Sec'y Feb. 27,
1991). Rule 41 applies because there are no procedures for
voluntary dismissals contained in either the ERA, the
implementing regulations at 29 C.F.R. Part 24, or the regulations
at 29 C.F.R. Part 18.
Under the ERA whistleblower provisions, a complainant is entitled
to unilateral, unconditional dismissal of his or her ERA
complaint in accordance with Rule 41(a)(1)(i), where the
respondent has not filed the functional equivalent of either an
answer to the complaint or a motion for summary judgment.
Reece v. Detroit Edison, 92-ERA-1 (Sec'y Apr. 9, 1992),
slip op. at 2; Rainey v. Wayne State University, 90-ERA-40
(Sec'y Jan. 7, 1991) (order to show cause), slip op. at 4,
dismissed, (Sec'y Feb. 27, 1991); Hendrix v. Duke Power
Co., 90-ERA-32 (Sec'y Sept. 2, 1990), slip op. at 2;
Stites v. Houston Lighting & Power Co., 87-ERA-41
(Sec'y ), slip op. at 2-3. If a complainant's dismissal request
is not covered by Rule 41(a)(1), then "an action shall not
be dismissed at the plaintiff's instance save upon order of the
court and upon such terms and conditions as the court deems
proper." Fed. R. Civ. P. 41(a)(2). See Nolder v.
Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28,
1985), slip op. at 6-7, appeal dismissed, No. 85-7472 (9th
Cir. 1985).
The respondent's filing of a "statement of position"
document before the Wage-Hour Administrator is not an
"answer" to the complaint for purposes of Rule
41(a)(1)(i). (The Secretary noted that a respondent's request
for a hearing following the adverse preliminary determination of
the Wage-Hour Administrator is the functional equivalent of an
"answer" for purposes of Rule 41(a)(1)(i),
Nolder, slip op. at 7-8, but that here the complainant
requested the hearing.)
The Secretary noted that the respondent could have foreclosed the
complainant's unilateral right of dismissal by filing before the
ALJ the equivalent of a motion for summary judgment. See
29 C.F.R. § 18.40. Cf. D.C. Electronics, Inc. v. Nartron
Corp., 511 F.2d 294, 298 (6th Cir. 1975) (rejecting the
defendant's position that Rule 41(a)(1)(i) leaves it defenseless
against the whim and caprice of the plaintiff).
The respondent also contended that the advanced stage of the
litigation precluded voluntary dismissal without leave of the
court. The Secretary, however, cited authority that admonishes
against engaging in a subjective approach of considering whether
an "advanced stage" of an action has been reached to
find any exceptio to Rule 41(a)(1)(i). E.g., Thorp v.
Scarne, 599 F.2d 1169, 1176 (2d Cir. 1979); D.C.
Electronics, Inc., 511 F.2d at 297-98; Pilot Freight
Carriers, Inc. v. International Brotherhood of Teamsters, 506
F.2d 914, 916-17 (5th Cir. 1975), cert. denied, 422 U.S.
1048 (1975). She concluded that this case was not so
"extreme" as to warrant an exception, Thorp, 599
F.2d at 1176, given that the merits of the case were never
squarely raised, nor did the considerable time and effort
expended by both parties in discovery extend the suit into an
"advanced stage." Id.; Sheldon v. Amperex
Electronic Corp., 52 F.R.D. 1, 7 (E.D.N.Y. 1971),
aff'd, 449 F.2d 146 (2d Cir. 1971). Mere expenditure of
time and money by the respondent does not bar the complainant's
entitlement, as of right, to dismiss without prejudice.
Johnson Chemical Co., Inc. v. Home Care Products, Inc.,
823 F.2d 28, 31 (2d Cir. 1987).
Mosbaugh v. Georgia Power Co., 90-ERA-58 (Sec'y
Sept. 23, 1992).
[Nuclear and Environmental Whistleblower Digest XVIII A 1]
VOLUNTARY DISMISSAL BEFORE ARB; APPLICATION OF FRAP 42(b)
Where Complainant filed a notice of dismissal, with prejudice, while the case was pending before the ARB, the ARB used Fed. R. App. P. 42(b) to construe Complainant's notice as a motion for voluntary dismissal, granted the motion, and dismissed the complaint. Doody v. Centerior Energy, ARB No. 00-051, ALJ No. 1997-ERA-43 (ARB July 26, 2001).
WITHDRAWAL; RESULTS OF ARBITRATION
[N/E Digest XVIII A 1]
In Coleman v. Duquesne Light
Co., 96-ERA-9 (ARB July 3, 1996), Complainant notified the ALJ that the issue
of his discharge had been rescinded through arbitration and that Complainant wished to withdraw
his complaint without prejudice. The Board accepted the withdrawal pursuant to Rule 41 of the
Federal Rules of Civil Procedure.
[N/E Digest XVIII A 1]
WITHDRAWAL OF COMPLAINT BEFORE ALJ; ORDER TO SHOW CAUSE
In Jorgensen v. Guaranteed Muffler, Tire &
Brake Service Center, Inc., 96-CAA-5 (ALJ Oct. 24, 1996), Complainants filed
with the ALJ a motion to withdrawn their complaint. The ALJ found that the complaint should
be dismissed pursuant to 29
C.F.R. § 24.5(e)(4). The Wage and Hour Division had found that discrimination was not a
factor in the actions comprising the complaint.
[Editor's note: This approach under section 24.5(e)(4) is a departure from the Secretary's
practice of handling voluntary dismissals pursuant to FRCP 41. SeeNunn v. Duke Power Co., 84-ERA-27 (Sec'y Sept.
29, 1989)(because section 24.5(e) is labeled "Dismissal for Cause", that regulation is not
applicable to voluntary dismissals); see generally N/E Digest at XVIII A 1]
VOLUNTARY DISMISSAL; COMPLAINANT'S DECISION NOT TO CONTEST
ALJ'S RECOMMENDED DECISION AND ORDER CONSTRUED AS VOLUNTARY
DISMISSAL
[N/E Digest XVIII A 1]
Where the Complainant filed a statement with the Secretary
that he did not want to contest the ALJ's Recommended Decision
and Order to dismiss his case, the Secretary treated this motion
to withdraw the complaint as a voluntary dismissal governed by
Fed. R. Civ. P. 41. Plumlee v. Exxon Chemical
Co., 95-TSC-11 (Sec'y Apr. 15, 1996).
XVIII A 1 Applicability of Rule 41
In Bradish v. The Detroit Edison Co., 94-ERA-20
(Sec'y Aug. 8, 1994), the Secretary dismissed the complaint
without prejudice, pursuant to the Complainant's request for
withdrawal. Such requests for withdrawal are treated as requests
for voluntary withdrawal under Rule 41(a)(1)(ii) of the Federal
Rules of Evidence, since neither the Department of Labor
regulations nor the ERA specifies any procedure for voluntary
withdrawals. Accordingly, the Complainant's written request,
together with the Respondent's written agreement, satisfy the
requirements of Rule 41.
XVIII A 1 Rule 41 and not section 24.5(e)(4) applies to
voluntary dismissals
In Nolder v. Raymond Kaiser Engineers, Inc., 84-
ERA-5 (Sec'y June 28, 1985), the Secretary determined that Fed.
R. Civ. P. is to be applied where voluntary dismissals are
sought, but left open the question of whether section
24.5(e)(4)(ii) was applicable. In Nunn v. Duke Power
Co., 84-ERA-7 (Sec'y Sept. 29, 1989), the Secretary
concluded that because section 24.5(e) is labeled "Dismissal
for Cause," that regulation was not applicable to voluntary
dismissals.
XVIII A 1 Applicability of Rule 41
In Bradish v. The Detroit Edison Co., 94-ERA-
20 (Sec'y Aug. 8, 1994), the Secretary dismissed the complaint
without prejudice, pursuant to the Complainant's request for
withdrawal. Such requests for withdrawal are treated as requests
for voluntary withdrawal under Rule 41(a)(1)(ii) of the Federal
Rules of Evidence, since neither the Department of Labor
regulations nor the ERA specifies any procedure for voluntary
withdrawals. Accordingly, the Complainant's written request,
together with the Respondent's written agreement, satisfy the
requirements of Rule 41.
XVIII.A.1. Withdrawal of single count
In Mitchell v. Arizona Public Service Co., 92-ERA-
28 (ALJ Apr. 13, 1992), later dismissed based on
settlement, (Sec'y June 28, 1993), the Complainant sought
voluntary dismissal of one count of a multiple count complaint,
referring as authority to Fed. R. Civ. P. 41(a)(1)(i). The ALJ,
noted that the better Federal authority indicated that a motion
to dismiss a single count of a multi-count complaint should be
treated as an amendment to the complaint under Fed. R. Civ. P.
15(a). See Gronholz v. Sears, Roebuck & Co., 836 F.2d
515 (Fed. Cir. 1987); contra Oswalt v. Script, Inc., 616
F.2d 191 (5th Cir. 1980).
XVIII A 1 Voluntary dismissal
Rule 41 of the Federal Rules of Civil Procedure, and not section
24.5(e)(4) of the regulations, governs voluntary dismissals.
Avery v. B & W Commercial Nuclear Fuel Plant,
91-ERA-8 (Sec'y Oct. 21, 1991).
XVIII A 1 Dismissal without leave
The regulations implementing the Clean Air Act provide only for
dismissals for cause, see 29 C.F.R. § 24.5(e)(4), and do not
provide for voluntary dismissals of complaints. Nor are
voluntary dismissals provided for in the Rules of Practice and
Procedure for Administrative Hearings Before the Office of
Administrative Law Judges, 29 C.F.R. Part 18, which are
applicable to adjudicative proceedings before ALJs of the
Department of Labor in any situation not provided for or
controlled by rules of special application, such as Part 24. 29
C.F.R. § 18.1(a). Accordingly, where a complaint in a case
arising under Part 24 has sought a voluntary dismissal, Rule
41(a) of the Rules of Civil Procedure for the United States
District Courts has been applied. See Nolder v. Kaiser
Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985), slip op. at
6-8.
Where the Respondent has filed neither an answer nor a motion for
summary judgment, Rule 41(a)(1)(i) is the applicable rule.
Keelan v. Consolidated Edison Co. of New York,
Inc., 88-CAA-3 (Sec'y Sept. 29, 1989); Passanisi v.
Consolidated Edison Co. of New York, Inc., 88-CAA-4
(Sec'y Sept. 29, 1989); Cornish v. Consolidated Edison Co.
of New York, Inc., 88-CAA-5 (Sec'y Sept. 29, 1989);
Lorenz v. Law Engineering, Inc., 90-CAA-1 and 2
(Sec'y Mar. 12, 1991).
Under the regulations implementing the ERA, disposition of
complaints, including Fed. R. Civ. P.
41(a)(1)(i) dismissals, can only be effected by the final order
of the Secretary. Gergans v.
Edward Hines Hospital, 94-ERA-26 (Sec'y Dec. 7,
1994).
XVIII. A. 2. ALJ dismissals under Rule 41(a) are recommended
Pursuant to 29 C.F.R. § 24.6, the disposition of complaints,
including Rule 41(a)(1)(i) dismissals, can be effected only by
final order of the Secretary. Haymes v. D.P. Associates,
Inc., 94-SDW-1 (Sec'y Aug. 16, 1994).
XVIII.A.2. Recommended order of dismissal
In Clarke v. Florida Power Corp., 94-ERA-18 (Sec'y
July 21, 1994) (order to show cause), the ALJ erred in stating
that his order (pursuant to Rule 41(a)(1)(ii) of the Federal
Rules of Civil Procedure) was a final order. Under the
regulations implementing the ERA, an ALJ is authorized to issue
only a recommended decision, which must be reviewed by the
Secretary before it becomes final. 29 C.F.R. § 24.6 (1993).
XVIII A 2 Rule 41(a)(1)(i) dismissals are final only
after order of the Secretary
Disposition of ERA complaints, including Rule 41(a)(1)(i)
dismissals, can be effected only be final order of the Secretary.
The Secretary, therefore, disagreed with Respondent's contention
that the dismissal "was effective upon its filing . . . .
The proceeding ended at the time the notice of dismissal was
filed . . . ." Brock v. Tennessee Valley
Authority, 90-ERA-19 (Sec'y June 28, 1993).
XVIII. A. 2. ALJ dismissals under Rule 41(a) are
recommended
Pursuant to 29 C.F.R. § 24.6, the disposition of complaints,
including Rule 41(a)(1)(i) dismissals, can be effected only by
final order of the Secretary. Haymes v. D.P. Associates,
Inc., 94-SDW-1 (Sec'y Aug. 16, 1994).
In Saporito v. FedEx Kinko's Office and Print Services, Inc., ARB No. 06-043, ALJ No. 2005-CAA-18 (ARB Mar. 31, 2008), a complaint filed under several environmental whistleblower laws, the ALJ erroneously treated the Complainant's withdrawal under the regulatory procedure for STAA whistleblower cases, in which the withdrawal is treated as a withdrawal of objections to the OSHA findings. In Part 24 cases, there is no such regulatory requirement, and the standard for dismissals under FRCP 41 is used instead. For the dismissal to be with prejudice, the opposing party must show that it would suffer legal harm or prejudice if the case was dismissed without prejudice. The mere prospect of a second lawsuit or a tactical gain by the opposing party, however, is not plain legal prejudice. Relevant factors include the effort and expense of trial preparation, excessive delay and lack of diligence by the complainant in prosecuting the action, insufficient explanation for the need to take a dismissal, and whether the respondent has filed a motion for summary judgment. In the instant case, the ARB found that a dismissal with prejudice was proper because the Respondent had been prejudiced. The Respondent had expended effort and expense in preparation of the case before the ALJ (including filing an answer to the complaint, affirmative defenses supported by affidavits, and a motion for enlargement of time). The Complainant had delayed and lacked diligence in responding to the ALJ's order to show cause about the timeliness of the complaint. Although previously advised by the ALJ to seek counsel, the Complainant's only explanation for the withdrawal was that he was at an "economic disadvantage" because he could not afford an attorney. Finally, the Complainant's motion to withdraw came at a late stage in the litigation, when he was facing a potential adverse ruling on the merits of his case.
XVIII A 3 Requirement that ALJ state
whether dismissal is with or
without prejudice
In Stites v. Houston Lighting & Power Co., 87-
ERA-41 (Sec'y Sept. 29, 1989), the ALJ granted the complainant's
motion to dismiss, which had requested that the dismissal to be
without prejudice, but stated that because of the limitation
period for filing an ERA complaint, "the grant of
Complainant's Motion herein effectively precludes any future
legal remedy."
The Secretary on review noted that it appeared that the ALJ
considered it immaterial whether the dismissal was with or
without prejudice. Because a dismissal with prejudice results
not only in a complainant being time barred from filing again
under section 210 of the ERA, but "the doctrine of res
judicata would bar Complainant from ever bringing a claim of
retaliation against Respondent based on these facts in [a] state
or any other court." Slip op. at 3, quoting Nolder v.
Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985)), slip
op. at 12.
Hence, it is necessary when granting a motion to dismiss to state
clearly whether it is granted with or without prejudice.
[Nuclear & Environmental Digest XVIII A 3]
VOLUNTARY DISMISSAL; DISMISSAL WILL BE WITH PREJUDICE ONLY IF
RESPONDENT DEMONSTRATES THAT IT WILL SUFFER PLAIN, LEGAL PREJUDICE
In Anderson v. DeKalb Plating Co.
Inc., ARB No. 98-158, ALJ No. 1997-CER-1 (ARB July 27, 1999), the ALJ had issued an order
recommending that Complainant's petition to withdraw her request for hearing be granted, and that the
complaint be dismissed with prejudice. On review, the ARB had modified the order to be without
prejudice, and Respondent subsequently filed a request that the order be changed back to dismissal
with prejudice.
The ARB noted that FRCP 41 governs voluntary dismissals of environmental whistleblower
cases. The ARB wrote that "[b]ecause a dismissal with prejudice prevents a complainant from
reinstituting a case, Ball v. City of Chicago, 2 F.3d 753 (7th Cir. 1993), it is not a sanction to
be imposed lightly. Indeed, Fed. R. Civ. Pro. Rule 41(a) (2), providing for voluntary dismissal by court
order, assumes that a voluntary dismissal is without prejudice unless the order states otherwise."
The ARB, in rejecting Respondent's request, held that
to prevail in its request that the case be dismissed with prejudice, [Respondent] must
establish that it will suffer plain, legal prejudice if the case is dismissed without prejudice.
Factors to be considered in determining whether a respondent will suffer legal prejudice include
the respondent's effort expended in and the expense of trial preparation, the complainant's
excessive delay and lack of diligence in prosecuting the action, insufficient explanation for the
need to take a dismissal and the fact that respondent has filed a motion for summary
judgment.
In ERA whistleblower proceedings, a request for a hearing is
considered the equivalent of an answer, Nolder v. Raymond
Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985), slip
op. at 8. A request for a hearing is like an answer in that it
joins issue on the merits. Cable v. Arizona Public Service
Co., 90-ERA-15 (Sec'y Nov. 13, 1992), slip op. at 3, 5
n.5.
XVIII A 4 a Voluntary dismissal
Where the complainant seeks voluntary dismissal prior the hearing
of the case, it is error for the ALJ to dismiss the case under
the authority of 29 C.F.R. § 24.5(e)(4)(i)(A). Stites
v. Houston Lighting & Power Co., 87-ERA-41 (Sec'y
Sept. 29, 1989) (since the record indicated that the respondent
had not filed an answer or a motion for summary judgment, the
proper authority for the dismissal was Fed. R. Civ. P.
41(a)(1)(i). See Nolder v. Kaiser Engineers, Inc., 84-
ERA-5 (Sec'y June 28, 1985)).
XVIII. A. 4. a. Dismissal without leave; generally
In Clarke v. Florida Power Corp., 94-ERA-18 (Sec'y
Sept. 7, 1994), the Secretary issued an order to show cause why
the case should not be dismissed based on the Complainant's
earlier notice under Fed. R. Civ. P. 41(a)(1)(i). Neither party
responded, and the case was dismissed.
XVIII A 4 a Rule 41(a)(1) dismissal
A CAA whistleblower action may be dismissed by the complainant
pursuant to Fed. R. Civ. P. 41(a)(1),
by filing a notice of dismissal at any time before service by the
adverse party of an answer or of a
motion for summary judgment. Rullo v. Standard Chlorine of Delaware, 94-CAA-16
(Sec'y Feb. 16, 1995).
XVIII A 4 a No answer or motion for summary
judgment
Where Respondent had not filed the functional equivalent of
either an answer or a motion for summary judgment, Complainant
was entitled to dismissal without prejudice in accordance with
Fed. R. Civ. P. 41(a)(1)(i). Silver v. Carolina Power
& Light Co., 93-ERA-33 (Sec'y Sept. 29, 1993);
Landers v. Carolina Power & Light Co., 93-ERA-
27 (Sec'y Sept. 29, 1993).
XVIII A 4 a Voluntary dismissal
Where the record indicates that the respondent neither filed an
answer nor a motion for summary judgment, the complainant's
request for dismissal is properly handled under Fed. R. Civ. P.
41(a)(1)(i). Hendrix v. Duke Power Co., 90-ERA-32
(Sec'y Sept. 25, 1990) (ALJ erroneously used Rule 41(a)(2)).
To the same effect: Cooper v. Bechtel Power Corp.,
88-ERA-2 (Sec'y Sept. 29, 1989) (Secretary dismissed without
prejudice instead of ALJ's recommendation to dismiss with
prejudice); Ryan v. Northeast Utilities, 88-ERA-6
(Sec'y Sept. 29, 1989) (Respondent's counsel advised Secretary
that the respondent did not object and that the complainant had
voluntarily withdrawn his complaint).
XVIII A 4 a Voluntary dismissal
Dismissal without prejudice is appropriate where the requirements
for voluntary dismissal under Fed. R. Civ. P. 41(a)(1)(i) are
satisfied. In the instant case the respondent withdrew its
opposition to Complainant's Notice of Dismissal after it became
clear that the Notice of Dismissal was filed prior to
Respondent's service of its Answer. The withdrawal of opposition
resulted in the Secretary not reaching the question of whether
once an Answer is served, an ERA case can only be dismissed by
order the court pursuant to Rule 41(a)(2) (with the result that
Complainant would be required as a condition of dismissal to pay
the employer's attorney's fees and costs in defending the claim)
or whether the filing of an answer in an ERA case never precludes
a Rule 41(a)(1)(i) voluntary dismissal. Tabor v. Vermont
Yankee Nuclear Power Corp., 91-ERA-19 (Sec'y Sept. 26,
1991).
XVIII A 4 a Voluntary dismissal under Rule 41(a)(1)(i)
Where a complainant in a case arising under 29 C.F.R. Part 24
seeks voluntary dismissal, Fed. R. Civ.
P. 41(a) is applied. When the Respondent did not file the
functional equivalent of either an answer to
the complaint or a motion for summary judgment, Rule 41(a)(1)(i)
applies. Gergans v. Edward
Hines Hospital, 94-ERA-26 (Sec'y Dec. 7, 1994).
XVIII. A. 4. a. Dismissal without leave;
generally
In Clarke v. Florida Power Corp., 94-ERA-18 (Sec'y
Sept. 7, 1994), the Secretary issued an order to show cause why
the case should not be dismissed based on the Complainant's
earlier notice under Fed. R. Civ. P. 41(a)(1)(i). Neither party
responded, and the case was dismissed.
XVIII A 4 a Dismissal without leave
Where Respondent did not file the functional equivalent of either
an answer to the complaint or a motion for summary judgment, and
raised no objection to Complainant's motion for dismissal, the
case is properly dismissed without prejudice pursuant to Rule
41(a)(1)(i). Saporito v. Houston Lighting and Power
Co., 92-ERA-38 and 45 (Sec'y June 28, 1993).
XVIII A 4 a Notice of voluntary dismissal; Respondent
does not respond
The Secretary dismissed complaints against each Respondent
without prejudice based on Complainant's Notice of Voluntary
Dismissal, pursuant to Fed. R. Civ. P. 41(a)(1)(i). The
requirements for dismissal under the Rule 41(a)(1)(i) was deemed
satisfied since neither Respondent filed any response to the
Notice of Voluntary Dismissal.
Sylvester v. ABB/Power Systems Energy Services,
Inc., 93-ERA-51 (Sec'y Mar. 21, 1994).
Where the respondent did not aver that it had filed the
functional equivalent of an answer to the complaint or a motion
for summary judgment, the Secretary adopted the ALJ's
recommendation that the case be dismissed without prejudice
pursuant to the complainant's unopposed Notice of Voluntary
Dismissal. The complainant cited Fed. R. Civ. P. 41(a)(1)(i) and
Stites v. Houston Lighting & Power Co., 87-ERA-41
(Sec'y Sept. 29, 1989). Cable v. Arizona Public Service
Co., 91-ERA-29 (Sec'y May 29, 1991).
XVIII A 4 b i Respondent's request for hearing is
functional equivalent of answer
In Young v. CBI Services, Inc., 88-ERA-19 (Sec'y
Aug. 4, 1994), the Complainant filed a notice of voluntary
dismissal. The ALJ recommended dismissal without prejudice under
Fed. R. Civ. P. 41(a)(2). The ALJ applied Rule 41(a)(2) rather
than Rule 41(a)(1) because the ALJ found that the documents filed
by the Respondent constituted the functional equivalent of an
answer. The Secretary agreed that Rule 41(a)(2) applied, but
held that Respondent's request for a hearing following the
adverse preliminary determination of the Wage and Hour
Administrator constitutes an answer for purposes of Rule 41.
The Secretary also indicated that since the Respondent raised no
objection to the Complainant's notice of voluntary dismissal, and
no reason for denying the dismissal was apparent from the record,
dismissal without prejudice was proper.
XVIII A 4 b i "Functional equivalent of an
answer"
In Demlong v. Arizona Public Service Co., 93-ERA-29
(ALJ Aug. 20, 1993), Respondent opposed Complainant's motion to
dismiss without prejudice under Rule 41(a)(1)(i) of the Federal
Rules of Civil Procedure, contending that it filed the functional
equivalent of an answer when it responded to ESA's investigatory
inquiry.
The ALJ ruled that the Complainant's complaint filed with ESA was
not a "complaint" under the ALJ Rules of Practice,
which defines a "complaint" as "any document
initiating an adjudicatory proceeding...." 29 C.F.R. §
18.2(d). A complaint filed with ESA simply initiates an
investigation, 29 C.F.R. § 24.4, which the ALJ ruled was at
the investigatory and not the adjudicatory level. The ALJ ruled
that the matter was at the adjudicatory level only after a
request for a hearing with the Chief ALJ is filed under 29 C.F.R.
§ 24.4(d)(2).
The ALJ also ruled that Respondent had not filed with OALJ the
functional equivalent of an answer, citing the definition of an
"answer" provided by 29 C.F.R. § 18.5(d).
Accordingly, the ALJ permitted Complainant to voluntarily dismiss
the claim.
XVIII A 4 b i "Functional equivalent" of
an answer
In Young v. CBI Services, Inc., 88-ERA-19 (ALJ
Apr. 6, 1993), the Complainant sought a voluntary dismissal after
the ALJ issued an Order to Show Cause why the Secretary's
findings in an earlier case should not be given res judicata [or
collateral estoppel] effect in the instant proceeding. The
complaints involved the same facts and circumstances, except that
the gravamen of the first complaint was wrongful termination
while the second was refusal to rehire.
Noting the ruling stated by the Secretary in Mosbaugh v.
Georgia Power Co., 90-ERA-58 (Sec'y Sept. 23, 1992), that
complainant is entitled to a unilateral, unconditional dismissal
without prejudice of his or her employment protection complaint
under section 5851 in accordance with Rule 41(a)(1)(i) of the
Federal Rules of Civil Procedure where the respondent has not
filed the functional equivalent of either an answer to the
complaint a motion for summary judgment, the ALJ in
Young construed the term "functional
equivalent of an answer to the complaint."
The ALJ concluded that although a formal answer is not required
in an employee protection administrative adjudication under 29
C.F.R. Part 24, where documents filed by the respondent
nevertheless contain the elements of an answer as set out in 29
C.F.R. § 18.5(d)(2), the respondent has filed the
"functional equivalent of an answer" for purposes of
determining whether a voluntary dismissal should be without order
of the court pursuant to Rule 41(a)(1)(i).
In Young, the ALJ reviewed the respondent's filings
and concluded that since they set forth admissions and denials
and facts pertinent to the respondent's defense, the respondent
had made the functional equivalent of an answer. Accordingly,
the ALJ considered whether terms and conditions should be placed
on the dismissal under the analysis detailed in Nolder v.
Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28,
1985) and Stokes v. Pacific Gas & Electric Co., 84-
ERA-6 (Sec'y July 26, 1988).
[Editor's note: Younginvolved the situation where
the Complainant requested the hearing. In contrast, where the
Respondent requests the hearing, there is no conventional civil
law answer, and the respondent's hearing request is considered
the equivalent of an answer. Hence, if the complainant requests
dismissal after the respondent has requested a hearing, Rule
41(a)(1) is not applicable. See Nolder, slip op. at 7-8.
The Secretary has held that in an STAA case, the respondent's
denial of allegations made in the complaint are in effect the
filing of an answer for purposes of determining whether to apply
Rule 41(a)(1). Hester v. Blue Bell Services, 86-STA-11
(Sec'y July 9, 1986). By implication, the Secretary has also
held that in an STAA case, the respondent's objections to the
preliminary findings constitute an answer. Sharp v. James
Helwig & Son, Inc., 90-STA-30 (Sec'y Jan. 18, 1991).
Carter v. Los Alamos National Laboratory, 93-
CAA-10 (Sec'y Mar. 21, 1994).
The Secretary dismissed the case without prejudice based on
Complainant's Notice of Withdrawal Without Prejudice since the
Respondent did not file either an answer to the complaint or a
motion for summary judgment prior to the Notice. The Secretary
noted that the filing of a request for hearing is equivalent to
and answer, which in this case, was filed by the Complainant.
XVIII A 4 b 2 Respondent's inability to file an answer
does not make Rule 41(a)(1)(i)
inapplicable
The fact that a respondent is not able to request a hearing does
not render Rule 41(a)(1)(i) inapplicable in ERA proceedings.
See Hendrix v. Duke Power Co., 90-ERA-32 (Sec'y Sept. 25,
1990), slip op. at 2 n.2 (Rule 41(a)(1)(i) dismissal available
where complainant requested hearing). The respondent had noted
that in ERA whistleblower proceedings, a request for a hearing is
considered the equivalent of an answer, Nolder v. Raymond
Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985), slip
op. at 8, and hence that it was precluded from requested a
hearing where the Administrator's notice of determination was in
its favor. Cable v. Arizona Public Service Co.,
90-ERA-15 (Sec'y Nov. 13, 1992).
XVIII A 4 b 2 Voluntary dismissal
Where the parties agreed that the complainant would withdraw his
ERA case and resolve his complaint against the respondent through
arbitration, the withdrawal was governed by Rule 41(a)(1)(i) of
the Federal Rules of Civil Procedure.
In ERA cases, the filing of a request for hearing by the employer
is the equivalent of an answer for purposes of Rule 41. See
Nolder v. Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28,
1985), slip op. at 8. Where the complainant filed the request
for a hearing, his withdrawal request falls within Rule
41(a)(1)(i). Cooper v. Bechtel Power Corp., 88-ERA-2
(Sec'y Sept. 29, 1989).
Hettinger v. GPU Nuclear Corp., 87-ERA-7 (Sec'y
Mar. 15, 1991).
Reid v. Niagara Mohawk Power Corp.,
93-ERA-3 (Sec'y Feb. 14, 1994)
The Secretary issued a final order granting Complainant's
request for voluntary dismissal without prejudice and denying
Respondent's motion for summary judgment on the merits where the
Complainant submitted his request prior to Respondent's filing of
summary judgment motion. Complainant also submitted a timely
response to the ALJ's order to show cause for failure to appear
at the hearing which detailed Complainant's medical condition and
difficulty in retaining affordable counsel.
XVIII A 4 c Decision not to file summary judgment
motion
A dismissal without prejudice under Rule 41(a)(1)(i) is not
rendered unavailable to a complainant where the respondent
decides that filing a summary judgment motion would not be
prudent. The respondent contended that it would not have been
prudent to file a summary judgment motion before having an
opportunity to depose the complainant, and that the complainant
refused to appear for his deposition. Cable v. Arizona
Public Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992).
In Cable v. Arizona Public Service Co., 90-ERA-15
(Sec'y Nov. 13, 1992), the Secretary declined to apply a loose
interpretation of voluntary dismissal without prejudice under
Rule 41(a)(1)(i) based on the argument that the case had reached
an advanced stage. Noting that the case cited by the respondent,
Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d
105 (2d Cir. 19xx), cert. denied, 345 U.S. 964 (1953), has
received a "cool reception", the Secretary concluded
that the only exceptions to Rule 41(a)(1)(i) are where the merits
have been raised or a suit has reached an advanced stage, as in
Harvey, where an evidentiary hearing was held and the
record consisted of 420 pages. See Hamilton v. Shearson-
Lehman Am. Express, Inc., 813 F.2d 1532, 1534 (9th Cir.
1987). The Secretary held that although there had been
considerable procedural posturing in the instant case, the merits
of the complainant had not yet been addressed, and that the case
had not had reached as advanced a stage as in Harvey.
In Clarke v. Florida Power Corp., 94-ERA-18 (Sec'y
July 21, 1994) (order to show cause), the ALJ concluded that the
case should be dismissed without prejudice pursuant to Rule
41(a)(1)(ii) of the Federal Rules of Civil Procedure based on
Complainant's May 16, 1994 notice of withdrawal; representations
made by counsel during a May 18 conference call; and Respondent's
May 18, 1994 letter expressly stipulating to dismissal pursuant
to Rule 41(a)(1)(ii).
The Secretary concluded that the intent of the parties in regard
to whether the dismissal was to be with or without prejudice was
unclear. Noting that it appeared that Complainant was entitled
to unconditional dismissal of his ERA complaint in accordance
with Rule 41(a)(1)(i), the Secretary the parties to show cause
why the case should not be dismissed accordingly.
In Clarke v. Florida Power Corp., 94-ERA-18 (Sec'y
Sept. 7, 1994) (final order), the Secretary ordered the case
dismissed without prejudice because neither party responded to
the order to show cause.
[Nuclear & Environmental Digest XVIII A 4 e]
WITHDRAWAL OF CERCLA WHISTLEBLOWER COMPLAINT; DISMISSAL IS NOT
WITH PREJUDICE UNLESS SO REQUESTED
In Anderson v. DeKalb Plating Co.,
Inc.,1997-CER-1 (ARB July 28, 1998), Complainant filed a request to withdraw the complaint. The ALJ properly recommended
dismissal under Rule 41 of the Federal Rules of Civil procedure, but erred in recommending
dismissal with prejudice in the absence of a request for dismissal with prejudice. The ARB
instead ordered dismissal without prejudice.
XVIII A 4 e Dismissal without prejudice as
bar
The Secretary dismissed the complaint without prejudice in
accordance with the Complainant's written request to withdraw the
complaint and with the Respondent's approval of the request.
Voluntary dismissals of this nature are governed by Fed. R. Civ.
P. 41(a). The rule provides that "unless otherwise stated
in the notice of dismissal . . . , the dismissal is without
prejudice. . ." A dismissal without prejudice operates only
as a bar to the filing of another complaint under the same
statute. Thus, the Complainant is free to pursue her claims in
other forums under a different statute or a common law theory.
Brown v. Tennessee Valley Authority, 89-ERA-2
(Sec'y Mar. 21, 1994).
XVIII A 4 e Rule 41(a)(1)(i) dismissal; generally without
prejudice
Where there was no evidence that the Complainants contemplated
dismissal with prejudice in taking a voluntary dismissal under
Rule 41(a)(1)(i), it was error for the ALJ to recommend dismissal
with prejudice. The express language of Rule 41(a)(1)(i)
contemplates dismissal without prejudice. See also generally
Thompson v. United States Dept. of Labor, 885 F.2d 551 at
556, 557 (9th Cir. 1989).
Lorenz v. Law Engineering, Inc., 90-CAA-1 and 2
(Sec'y Mar. 12, 1991).
In Lujan v. Los Alamos National Laboratory, 93-CAA-
8 (ALJ Nov. 24, 1993), Respondent filed a bill of costs pursuant
to Rule 54 of the Federal Rules of Civil Procedure and 29 U.S.C.
§§ 1920 and 1924, contending that in the Tenth Circuit,
costs are awardable in voluntary dismissals without prejudice,
citing Mobile Power Enterprises, Inc. v. Power Vac, Inc.,
496 F.2d 1311, 1312 (10th Cir. 1974) and Nolen v. Henderson
National Corp., Nos. 91-6299, 91-6314 (10th Cir. Feb. 5,
1993) (available at 1993 U.S. App. LEXIS 18955). The ALJ had
earlier entered an Order of Dismissal without prejudice pursuant
to Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure.
The ALJ found that the cases cited by Respondent were inapposite
because they involved voluntary dismissals without prejudice by
order of the court pursuant to Rule 41(a)(2). While Rule
41(a)(2) provides for the court to impose terms and conditions,
including costs, as are appropriate, Rule 41(a)(1) does not.
Where the parties jointly file a Motion to Dismiss with
Prejudice, dismissal with prejudice under Fed. R. Civ. P.
41(a)(1)(ii) is appropriate. Luther v. City of
Tyler, 92-TSC-4 (Sec'y Aug. 25, 1993).
XVIII A 5 a Stipulated dismissal
Where a complainant seeks a voluntary dismissal with prejudice
and the respondent states that it does not oppose dismissal with
prejudice and that it seeks no costs or fees, the matter should
be treated as a stipulated dismissal and the complaint dismissed
pursuant to Rule 41(a)(1)(ii).
In such a situation it is error to use 29 C.F.R. §
24.5(e)(4), and the issuance of an order to show cause is not
called for.
Nunn v. Duke Power Co., 84-ERA-7 (Sec'y Sept. 29,
1989).
XVIII A 5 a Stipulated dismissal
Since neither the ERA nor its implementing regulations at 29
C.F.R. Part 29 provides for voluntary dismissals of complaints,
where a complainant in a case arising under Part 24 has sought a
voluntary dismissal, Rule 41(a) of the Federal Rules of Civil
Procedure for the United States District Courts has been applied.
See Caccavale v. Northeast Utilities, 91-ERA-3 (Sec'y Dec.
18, 1990); Nolder v. Raymond Kaiser Engineers, Inc., 84-
ERA-5 (Sec'y June 28, 1985).
Where the complainant files a motion, signed by the parties and
their counsel, states that withdrawal of the complaint does not
involve any settlement, and requests dismissal with prejudice,
the motion with the respondent's written concurrence constitutes
a stipulation of dismissal by the parties satisfying the
requirements of Fed. R. Civ. P. 41(a)(1)(ii).
Galata v. Tennessee Valley Authority, 91-ERA-28
(Sec'y May 20, 1992).
To the same effect: Hall v. Teledyne Wah Chang
Albany, 91-ERA-30 (Sec'y Aug. 30, 1991); Denayer v.
Tennessee Valley Authority, 91-ERA-32 (Sec'y July 22,
1991); Wagerle v. Trustees of the University of
Pennsylvania, 91-ERA-48 (Sec'y Mar. 9, 1992);
Weisenstein v. Tennessee Valley Authority, 89-ERA-4
(Sec'y Oct. 10, 1989) (no discussion of whether a settlement was
involved); Scott v. American Protective Services,
Inc., 89-ERA-35 (Sec'y Apr. 26, 1990) (ambiguity whether
withdrawal was based on settlement obliged Secretary to inquire
further; when counsel for the respondent responded that no
settlement had been involved, the Secretary permitted the
withdrawal under Rule 41(a)(1)(ii)); Meier v. Brown &
Root, 89-ERA-44 (Sec'y Mar. 28, 1990); Carmack v.
Tennessee Valley Authority, 88-ERA-18 (Sec'y Feb. 28,
1991) (dismissal under Rule 41(a)(1)(ii) appropriate after
counsel for respondent submitted clarification of a
"Stipulation of Dismissal" indicating that the
withdrawal was not based on a settlement); Millet v. Anco
Insulations, Inc., 88-ERA-35 (Sec'y Sept. 29, 1989);
Ryan v. Pacific Gas & Electric Co., 87-ERA-32
(Sec'y Aug. 9, 1989).
To the same effect, but dismissing without prejudice:
Kleiman v. Florida Power and Light Co., 91-ERA-50
(Sec'y Feb. 21, 1992) (respondent also agreed to pay its own
costs and legal expenses); Latshaw v. Tennessee Valley
Authority, 91-ERA-54 (Sec'y May 28, 1992) (ALJ erred in
subjecting dismissal to rulings from his Order on Respondent's
Motion for Partial Summary Judgment; parties' expressly chose to
have the complaints dismissed "without prejudice").
XVIII A 5 a Stipulated dismissal
Voluntary dismissals of ERA complaints are covered by Rule 41 of
the Federal Rules of Civil Procedure. A respondent's written
response is that it does not object to the complainant's
voluntary dismissal and that it will bear its own costs and fees,
together with the complainant's notice of voluntary dismissal,
may be deemed to constitute a stipulation of dismissal by the
parties satisfying the requirements of Rule 41(a)(1)(ii).
House v. Tennessee Valley Authority, 92-ERA-9
(Sec'y Jan. 4, 1993).
XVIII A 5 a Stipulated dismissal; effective
immediately
A voluntary dismissal by a stipulation signed by all parties who
have appeared in the action is effective immediately under Fed.
R. Civ. P. 41(a)(1)(ii). First National Bank of Toms River,
New Jersey v. Marine City, Inc., 411 F.2d 674, 676 (3d Cir.
1969).
Mulligan v. Vermont Yankee Nuclear Power Corp., 92-
ERA-20 and 32 (ALJ May 1, 1992).
XVIII A 5 a Voluntary dismissal
Since neither the ERA, the implementing rules at 29 C.F.R. Part
24, nor the rules governing hearings before ALJs of the
Department of Labor at 29 C.F.R. Part 18, contain a provision
governing voluntary dismissal, a dismissal without prejudice
based on the complainant's request to withdraw his complaint not
objected to by the respondent is appropriate under Fed. R. Civ.
P. 41(a)(2). Wollesen v. Florida Power Corp., 92-
ERA-59 (Sec'y Dec. 15, 1992).
[Editor's note: was this a typo? Did the Secretary mean Rule
41(a)(1)(ii); see Fullmer, 92-ERA-56]
XVIII A 5 a ALJ's failure to forward administrative
record
In Mulligan v. Vermont Yankee Nuclear Power Corp.,
92-ERA-20 and 32 (Sec'y Apr. 22, 1994), the Secretary never
received the administrative record, although it was referenced in
the ALJ's recommended order approving the parties' jointly filed
motion for dismissal with prejudice pursuant to Fed. R. Civ. P.
41(a)(1)(ii). Because the ALJ's recommendation appeared to be
appropriate, rather than delay the final disposition of the case,
the Secretary issued an order to show cause why the recommended
order should not be accepted as the final decision pursuant to 29
C.F.R. § 24.6. After considering Complainant's response the
Secretary adopted the recommended order.
XVIII A 5 a Stipulation of dismissal
A complainant's submission of a Notice of Voluntary Dismissal,
together with the respondent's written response that it does not
contest the complainant's request, may be deemed to constitute a
stipulation of dismissal by the parties, satisfying the
requirements of Rule 41(a)(1)(ii) of the Federal Rules of Civil
Procedure. See Kleiman v. Florida Power and Light Co.,
91-ERA-50 (Sec'y Feb. 21, 1992), slip op. at 1-2; Nunn v. Duke
Power Co., 84-ERA-27 (Sec'y Sept. 2, 1989), slip op. at 3-4.
Fullmer v. Arizona Public Service Co., 92-ERA-56
(Sec'y Dec. 15, 1992) (ALJ erroneously recommended dismissal
under Fed. R. Civ. P. 41(a)(1)(i)).
XVIII A 5 a Where respondent does not object Rule
41(a)(1)(ii) dismissal is
appropriate
A Respondent's written response indicating that it does not
object to Complainant's voluntary dismissal, together with the
complainant's notice of voluntary dismissal, may be deemed
sufficient to constitute a stipulation of dismissal by the
parties satisfying the requirements of Rule 41(a)(1)(ii) (which
is used when dismissing withdrawn ERA complaints).
Blevins v. Tennessee Valley Authority, 90-ERA-4
(Sec'y June 28, 1993).
XVIII A 5 a Voluntary dismissal following filing of motion
for summary decision
In Smith v. Burns International Security Service,
93-ERA-15 (ALJ June 29, 1993), adopted (Sec'y Aug. 25,
1993), Respondent filed a motion for summary decision on May 18,
1993. Counsel for Complainant confirmed on June 10, 1993 his
client's intention to dismiss the case, that his client
understood the implications of dismissal, and that Respondent's
counsel agreed to the dismissal and was not intending to file for
sanctions or attorney fees.
The ALJ ruled that since a motion for summary judgment had been
filed, the complaint could not be voluntarily dismissed under
Fed. R. Civ. P. 41(a)(1), and therefore directed Complainant to
file a formal request for dismissal under Fed. R. Civil P.
41(a)(2) and directed Respondent's counsel to advise whether the
dismissal order should contain any conditions.
Respondent's counsel submitted a joint stipulation and motion for
dismissal with prejudice, each party to bear its own costs, under
29 C.F.R. § 18.1(a) and Rule 41(a)(1)(ii) of the Federal
Rules of Civil Procedure.
The ALJ concluded that Rule 41(a)(1)(ii) was appropriate for
dismissal (although he had anticipated a Rule 41(a)(2) motion).
He stressed that it appeared that no settlement was involved in
the case.
On review the Secretary adopted the ALJ's Recommended Order
"as it is in accordance with the prior decisions of the
Secretary on voluntary dismissals. [citations omitted]"
Smith v. Burns International Security Service, 93-ERA-15
(Sec'y Aug. 25, 1993).
XVIII A 5 a Voluntary dismissal
Where the complainant submitted a written Withdrawal of
Complaint, signed by the parties and requesting dismissal with
prejudice, the ALJ's recommendation that the case be dismissed
with prejudice under Fed. R. Civ. P. 41(a)(1)(ii) was adopted by
the Secretary. Caccavale v. Northeast Utilities,
91-ERA-3 (Sec'y Dec. 18, 1990).
XVIII A 5 a Stipulated dismissal
Where the ALJ noted in his Recommended Decision and Order that
the parties stipulated to dismissal, that no settlement is
involved in the case, and that the complainant, who was appearing
pro se, had been advised of the legal consequences of a
dismissal, the Secretary adopted the ALJ's recommendation of
dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(ii). Buck
v. Tennessee Valley Authority, 91-ERA-10 (Sec'y Dec. 23, 1991).
XVIII A 5 a Stipulated dismissal
Where the parties stipulate to dismissal of a complaint with
prejudice, Rule 41(a)(1)(ii) is applicable. Dysert v.
Florida Power & Light Co., 92-ERA-26 (Sec'y June 28,
1993).
Where the parties agreed to a voluntary dismissal pursuant to
Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure, and
the dismissal is based on a settlement, the ALJ should review the
terms of the settlement. The case should not be dismissed unless
the terms of the settlement are fair, adequate and reasonable.
In addition, where a dismissal is based on a fully executed
settlement agreement between the parties, it is not necessary to
employ Rule 41(a)(1)(ii) as the applicable statutes and case law
provide for the dismissal of a case by the Secretary upon
approval of the terms of such an agreement.
McGlynn v. Pulsair Inc., 93-CAA-2 (Sec'y June 28,
1993).
XVIII A 5 b Secretary may review underlying
settlement
In Hoffman v. Fuel Economy Contracting, 87-ERA-33
(Sec'y Aug. 4, 1989), the Secretary rejected the respondents'
contention that (to paraphrase) under 29 C.F.R. § 18.9(c)(2)
and Rule 41 of the Federal Rules of Civil Procedure the parties
have a right to enter into an stipulation dismissing the
complaint without review by the Department of Labor.
In ordinary lawsuits brought by one private party against another
private party, where the rights of other persons will not be
affected, "settlement of the dispute is solely in the hands
of the parties." United States v. City of Miami, 614
F.2d 1322, 1330 (5th Cir. 1980), aff'd in part and vacated and
remanded in part on other grounds on rehearing en banc, 664
F.2d 435 (5th Cir. 1981). Thus, under Fed. R. Civ. P.
41(a)(1)(ii), a stipulation signed by all parties who have
appeared in the court action is effective automatically, without
judicial involvement. Gardiner v. A.H. Robins Co., Inc.,
747 F.2d 1180, 1189 (8th Cir. 1984).
However, by its terms Rule 41 does not apply where "any
statute of the United States" establishes other procedures
for dismissal of actions pursuant to settlements. The ERA
requires the Secretary to issue an order resolving the case
"unless the proceeding on the complaint is terminated by the
Secretary on the basis of a settlement entered into by the
Secretary and the person alleged to have committed such
violation. . . ." 42 U.S.C. § 5851(b)(2)(A). In ERA
cases, the case cannot be dismissed on the basis of a settlement
"unless the Secretary finds that the settlement is fair,
adequate and reasonable." Fuchko and Yunker v. Georgia
Power Co., 89-ERA-9 and 10 (Sec'y Mar. 23, 1989) (order to
submit settlement agreement).
Although it is not necessary for the parties' settlement to be
appended to an order approving a settlement and dismissing a case
under the ERA, the Secretary has held that "it is error for
the ALJ to dismiss a case without reviewing the settlement and
making a recommendation of whether the settlement is fair,
adequate and reasonable." Id. at 1-2.
DOL does not simply provide a forum for private parties to
litigate their private employment discrimination suits.
Protected whistleblowing under the ERA may expose not just
private harms but health and safety hazards to the public. The
Secretary represents the public interest by assuring that
settlement adequately protect whistleblowers. Cf. Virginia
Electric and Power Co., 19 FERC ¶ 61,333 (Federal
Regulatory Energy Commission 1982) ("[B]efore approving a
settlement, regardless of whether it is contested or enjoys the
unanimous support of the parties, the Commission is obliged to
make an independent determination that the settlement is just and
reasonable and in the public interest.")
Accord: Bittner v. Fuel Economy Contracting Co.,
88-ERA-22 (Sec'y Dec. 13, 1989) (order denying request for
reconsideration, dismissal and stay); Thompson v. The
Detroit Edison Co., 87-ERA-2 (Sec'y Sept. 29, 1989)
(order denying motion to reconsider).
In Wagerle v. The Trustees of the Univ. of Pennsylvania, 91-ERA-48 (Sec'y Mar. 17,
1995) (order denying reconsideration), the Complaint sought
reconsideration of the voluntary dismissal
of the complaint with prejudice approximately ten months after
the Secretary had issued a final order of
dismissal. In the Order Denying Reconsideration, the Secretary
noted Complainant's argument that his
counsel did not adequately explain that in seeking dismissal with
prejudice, he would given up his right
to sue. The Secretary also noted that the Complainant had sought
advice on the meaning of "with
prejudice" and was reportedly told by counsel that it
"means you can't bring [this complaint]
up again." Slip op. at 3, quoting Complainant's motion for
reconsideration. Given Complainant's
level of education (a Ph.D.), the Secretary concluded that he
should have known that withdrawing a
complaint with prejudice terminates the complaint at issue and
prevents the complainant from raising
the same complaint again.
XVIII A 6 Withdrawal of motion
In Kamin v. Hunter Corp., 89-ERA-11 (Sec'y Mar. 12,
1990), the Secretary permitted the complainants to rescind their
motion for withdrawal of their joint complaint. In Kamin,
the Wage and Hour Division had not conducted an investigation
because it had concluded that the complainants were not covered
by the ERA inasmuch as they had never been employed by the
respondent. Noting that the complainants were proceeding pro se,
the Secretary remanded the matter "in the interest of
justice" to the Wage and Hour Administrator for an
investigation.
[The ALJ had recommended an order finding that the complainants
were not entitled to relief under the ERA because the
complainants had never responded to the respondent's motion for
summary judgment on the ground that the complainants were not,
and never had been, employees of the respondent. Kamin v.
Hunter Corp., 89-ERA-11 (ALJ Jan. 24, 1989).]
In McNiece v. Northeast Nuclear Energy, 95-ERA-18
(Sec'y July 11, 1995), the Complainant, who was acting pro se,
represented at the opening of the oral hearing that he engaged in
protected activity and that Respondent retaliated by subjecting
him to a pattern of adverse personnel action, including
termination of employment. The Respondent objected to the
raising of the termination issue because it did not occur until
after the complaint was filed. The ALJ deemed it inappropriate
for the Complainant to amend his complaint at that point, advised
the Complainant that he could still file a timely complaint
regarding his termination, and suggested to the Complainant that
a complaint based on termination was likely to have greater
economic benefit, if successful. The Complainant, following the
ALJ's suggested, announced that he wished to withdraw. The ALJ
recommended to the Secretary that the withdrawal be with
prejudice.
The Secretary rejected the ALJ's recommendation that the
withdrawal be accepted, and remanded the case for the ALJ to
proceed with a hearing. The Secretary stated that if the
Complainant has filed another complaint, the ALJ could consider
consolidating the complaints in the interest of judicial economy.
[Editor's note: In his recommended order, the ALJ
indicated that he believed that the termination complaint was
subject to an initial investigation by the Wage and Hour
Division. McNiece v. Northeast Nuclear Energy, 95-
ERA-18 (ALJ , 1995).]
[Nuclear & Environmental Digest XVIII A 8] WITHDRAWAL OF APPEAL; PETITIONER IS NOT REQUIRED BY THE ARB TO SHOW CAUSE FOR WITHDRAWAL
In Johnson v. EG&G Defense Materials, Inc., ARB No. 06-067, ALJ No. 2005-SDW-2 (ARB May 25, 2006), the ARB stated that it does not require a petitioner to demonstrate cause for withdrawing an appeal.
[Nuclear & Environmental Digest XVIII A 8]
WITHDRAWAL; COMPLAINANT'S DECISION NOT TO PROCEED WITHOUT
COUNSEL AND TO PURSUE OTHER FORUMS
In Gattie v. United States Environmental Protection Agency, 1998-
CAA-8 (ALJ Sept. 14, 1998), Complainant asked to withdraw his complaint with prejudice,
citing as reasons that he could not immediately obtain counsel, and a preference to testify before
a congressional subcommittee rather than pursue a remedy before DOL. The ALJ recommended
dismissal with prejudice only after informing Complainant that he could proceed without
counsel, and informing Complainant that he could accept an extension of time to reply to
discovery so that he would have more time to obtain counsel. Complainant, however, still chose
to withdraw his complaint.
WITHDRAWAL OF COUNTS GOVERNED BY FED. R. CIV. P. 15(a) [N/E Digest XVIII A 8]
Voluntary dismissal of a complaint under the ERA is governed
by Fed. R. Civ. P. 41. Withdrawal of counts within multiple
count complaints, however, is governed by Fed. R. Civ. P. 15(a),
which concerns amendments of pleadings. Frady v. Tennessee
Valley Authority, 92-ERA-19 and 34 (Sec'y Oct. 23, 1995).
Where Complainant files a notice of withdrawal and the Respondent
does not object thereto, dismissal is appropriate under Fed. R.
Civ. P. 41(a)(2). Holmes v. Texas Utilities, 93-
ERA-10 (Sec'y June 28, 1993).
[N/E Digest XVIII B 1]
VOLUNTARY DISMISSAL; USE OF FED. R. CIV. P. 41(a)(2)
In Cartwright v. Lockheed Martin Utility Services, Inc., 97-ERA-41
(ARB Oct. 31, 1997), the ARB accepted the ALJ's recommended order of dismissal pursuant to
Fed. R. Civ. P. 41(a)(2). The ALJ had recommended dismissal under Rule 41(a)(2) because in a
prehearing telephone conference call Complainant had acknowledged that his complaint did not
relate to a potential environmental safety violation, but rather involved a fire safety concern for
which Complainant had filed a complaint with OSHA. Following the conference call, the parties
submitted a joint motion to dismiss. Cartwright v. Lockheed Martin Utility Services,
Inc., 97-ERA-41 (ALJ Oct 22, 1997). The ALJ found that the dismissal was voluntary,
in the best interests of the parties, and that there was no information indicating that a settlement
was involved. Id.
To the same effect: Seetharaman v. Massachusetts Water Resources
Authority, 97-CAA-17 (ARB Nov. 18, 1997).
XVIII B 1 Voluntary dismissal
In a case arising out of section 503 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. § 793, and implementing
regulations at 41 C.F.R. § 793, where those regulations did
not provide for voluntary agreements for dismissal but did
provide for reference to the Federal Rules of Civil Procedure in
the absence of a specific provision, the office of the Assistant
Secretary for Employment Standards consulted Rule 41(a)(1)(ii) of
the Federal Rules. She noted that Rule 41(a)(1)(ii) provides for
the dismissal of an action "by the plaintiff without order
of the court" where a stipulation of dismissal is signed by
all the parties, and closed the case based on a such a
stipulation affixed to the ALJ's Agreed Order of Dismissal.
OFCCP v. Union Camp Corp., 91-OFC-6 (Oct. 22,
1992).
In Stokes v. Pacific Gas & Electric Co., 84-
ERA-6 (Sec'y July 26, 1988), Complainant requested a withdrawal
without prejudice, and Respondents did not oppose the request.
Nevertheless, the ALJ was instructed in an order of remand to
consider what conditions, if any, would attach to the dismissal
under the guidelines set forth in Nolder v. Raymond Kaiser
Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985).
According to the Secretary, one of the principal holding of
Nolder is that the ALJ's discretion to attach conditions
to an order of voluntary dismissal without prejudice should be
exercises only to protect a respondent's legitimate interest in
the avoidance of legal harm or prejudice. Such harm is not
suffered where expenses are incurred by the non-moving party for
work which is of use in continuing litigation in another forum.
Tactical disadvantage, such as the possibility or reality of
defending a second lawsuit on the same issue or issues generally
is not sufficient in and of itself to constitute legal harm or
prejudice.
In Stokes, Respondents argued before the ALJ that a
"substantial" amount of their incurred costs will not
be of benefit to them in defending a pending state court action,
but did not present any evidence which would distinguish
necessary from unnecessary work. Without a basis for quantifying
the amount of unnecessary expenses, the Secretary accepted the
ALJ's recommendation of no conditions.
The Secretary stated that any harm or prejudice in this case
would be represented by the difference between Respondent's
expenses incurred only on account of the Department of Labor
litigation, and those which Respondents would have incurred had
the Complainant filed his action only in the forum where the
litigation will proceed. See McLaughlin v. Cheshire, 676
F.2d 855, 857 (D.C. Cir. 1982).
XVIII B 2 Criteria for Rule 41(a)(2) dismissal
In Nolder v. Raymond Kaiser Engineers, Inc., 84-
ERA-5 (Sec'y June 28, 1985), the Secretary discussed in detail
the analysis to be employed in a Rule 41(a)(2) withdrawal. The
following summarizes the Secretary's discussion. Case citations
are generally omitted to keep this casenote to a reasonable size.
Rule 41(a)(2) (dismissal by order of the court) was invoked in
Nolder because the Respondent had filed the
equivalent of an answer by requesting a hearing, making a Rule
41(a)(1) dismissal (dismissal without leave of the court)
inappropriate.
The Criteria, Generally
The Secretary indicated that, although the ALJ had misapplied
Spencer v. Moore Business Forms, 87 F.R.D. 118 (1980),
that case set forth the criteria for determining whether, and
under what terms, a motion to withdraw should be granted
following the filing of an answer. Three determinations are
necessary:
the court must decide whether to allow dismissal at
all.
if dismissal is allowed, the court must decide whether
it should be with or without prejudice.
if dismissal without prejudice is allowed, the court
must decide whether any terms and conditions should be
imposed.
Guiding these determinations is the rule that dismissal without
prejudice should be granted unless the defendant will suffer some
legal harm. Indeed, the very purpose of Rule 41(a)(2) is to
allow dismissal without prejudice. The Secretary stated that
Spencer makes it clear that whether the defendant will be
legally prejudiced must be considered when deciding if the
complaint should be dismissed at all, in addition to deciding
whether a dismissal should be with or without prejudice. To
avoid prejudice, the Rule permits the court to attach conditions
to the dismissal. According to the Secretary, legal harm or
prejudice is not equivalent with the type of harm that could be
rectified by attaching conditions to a withdrawal without
prejudice.
What Constitutes Legal Prejudice
The Secretary looked to a Ninth Circuit case for instruction on
what constitutes legal harm. Hamilton v. Firestone Tire &
Rubber Co., Inc., 679 F.2d 143 (9th Cir. 1982). The Ninth
Circuit stated that "[p]lain legal prejudice . . . does not
result simply when defendant faces the prospect of a second
lawsuit or when plaintiff merely gains some tactical
advantage." [citations omitted] It indicated that plain
legal prejudice is not shown merely by asserting that trial
preparations had begun, or by the mere inconvenience of defending
another lawsuit.
The Secretary noted that in Spencer, dismissal without
prejudice was disallowed only on those counts on which the court
had already granted summary judgment for the defendant. In other
cases, legal prejudice has been found where dismissal would have
allowed the plaintiffs to proceed in other courts under different
laws that would have been more beneficial to the plaintiffs than
the laws applicable to the proceedings in which the motions were
brought.
The Secretary also found that the effect of dismissing a claim
with prejudice must be recognized, and cited caselaw to the
effect that dismissal with prejudice is generally only permitted
where there is a clear record of delay or contumacious conduct.
The Secretary also stated that dismissal with prejudice is a
severe sanction because it bars a plaintiff from ever prosecuting
another action based on the same cause: i.e., the principle of
res judicata applies. The Secretary also noted that a dismissal
without prejudice does not toll a statute of limitations, so,
where the 30 days from the occurrence of the violation had
already passed, a complainant could not file a new ERA complaint
since it would be untimely.
According to the Secretary, upon dismissal of the complaint
without prejudice, the determination of the Wage and Hour
Division is automatically vacated, so a Respondent who appealed
is not prejudiced by some outstanding government determination.
Mere delay does not constitute legal prejudice. Further, while a
monetary loss due to delay can be the subject of a condition for
dismissing a claim without prejudice, such a cost is not legal
prejudice. Difficulties in gathering evidence from delay is not
legal prejudice, both sides being in the same position in that
regard.
If a respondent establishes that it would be detrimentally
affected by the state laws under which the complainant was
seeking proceed, legal prejudice is established.
Criteria for Determining Whether Conditions Should Be
Imposed
The ALJ has the discretion to condition dismissal of the
complaint without prejudice on complainant's reimbursing the
respondent for expenses. The ALJ may decide, however, that the
respondent is not entitled to the cost of work that will be
useful in a state court proceeding.
The ALJ may also condition the dismissal on the complainant's
agreement that all discovery in the case can be used freely in
the state court proceeding.
Should the ALJ set conditions, he or she must provide the
complainant with the option not to dismiss and to proceed if the
complainant finds the conditions too onerous. Only if the
complainant accepts the dismissal on the conditions set by the
ALJ but does not meet the conditions may the ALJ dismiss the
complaint with prejudice.
[Editor's note: On remand, the ALJ wrote a recommended decision
and order in which he found that Complainant's counsel's filing
in both state court and with the DOL was an appropriate tactical
decision given legal uncertainty at the time whether the DOL
remedy was exclusive. Respondent sought $58,460.37 in fees as a
condition. The ALJ found that with a few exceptions, the legal
work done by Respondent's attorneys would be of assistance in the
state court action or related to work directly involving the
state case initiated by Respondent to block the state case. He
noted that Respondent would not be entitled to fees if he won the
DOL action, and that the apparent purpose of the sought after
fees was to punish Complainant.
In regard to some work done in preparation for depositions
cancelled at the last minute by Complainant, the ALJ found that
it benefited the defense of the state case, and that the expense
were in excess of what was reasonable and necessary (e.g., two
attorneys flying first class air fares, and luxurious accommo-
dations. Though Respondent might be willing to pay such
expenses, this was more than was appropriate.) Thus, he reduced
the amount requested considerably to reasonable travel and time
expenses.
The Secretary never reviewed the ALJ's recommended decision
because the parties settled.]
XVIII B 2 Relevant considerations for Rule 41(a)(2)
dismissal
(Voluntary dismissal upon order of the court)
In Young v. CBI Services, Inc., 88-ERA-19 (ALJ
Apr. 6, 1993), the ALJ reviewed the respondent's filings and
concluded that since they set forth admissions and denials and
facts pertinent to the respondent's defense, the respondent had
made the functional equivalent of an answer. Accordingly, the
ALJ concluded that the motion to dismiss should be considered
under Rule 41(a)(2) (voluntary dismissal with leave of the court)
of the Federal Rules of Civil Procedure rather than Rule
41(a)(1)(i) (voluntary dismissal without leave of the court).
In considering the motion for voluntary dismissal, the ALJ
considered whether terms and conditions should be placed on the
dismissal under the analysis detailed in Nolder v. Raymond
Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985) and
Stokes v. Pacific Gas & Electric Co., 84-ERA-6 (Sec'y
July 26, 1988). The ALJ concluded that those cases indicated a
three part determination (1) whether to allow dismissal, (2)
whether the dismissal should be with or without prejudice, and
(3) if dismissal without prejudice is allowed, whether any terms
or conditions should be imposed. In making these determinations,
the ALJ noted that Rule 41(a)(2), as interpreted in Nolder
and Stokes, is premised on permitting a withdrawal without
prejudice, dismissal with prejudice being a severe sanction.
When dismissal without prejudice is granted, the condition of
reimbursement of the respondent for costs and fees is normally
imposed only for such costs and fees that relate to work that
would not be useful in any anticipated litigation.
After analyzing the circumstances, the ALJ recommended dismissal
without prejudice.
Where the complainant asked for dismissal based on her desire to
withdraw her complaint, the respondent asked that the dismissal
be with prejudice, and the complainant did not object to the
respondent's request, the Secretary found that dismissal with
prejudice under Fed. R. Civ. P. 41(a)(2), which provides for
dismissal by order of the court with such terms and conditions as
the court deems proper, was warranted. Hensley v. Nuclear
Fuel Services, Inc., 92-ERA-42 (Sec'y Nov. 16, 1992).
XVIII B 3 Dismissal based on Complainant's voluntary
dismissal is assumed to be without
prejudice
In Young v. Florida Power & Light Co., 93-ERA-
30 (Sec'y July 13, 1995), after some delay, the Complainant filed
with the ALJ a Notice of Dismissal on the ground that it would be
uneconomical to pursue both the DOL complaint and a federal court
case alleging racial discrimination with a pendant claim under a
state whistleblower statute. Although the pleading made it clear
that the Complainant would prefer a stay while he pursued the
court action, the ALJ found that the Complainant had failed to
prosecute and recommended dismissal with prejudice because of the
Complainant's "dilatory" approach to the DOL
proceeding.
The Respondent argued before the Secretary that the dismissal
should be with prejudice because the Complainant filed the Notice
of Dismissal so late in the process that it had already incurred
additional cost and effort in deposing the Complainant listed
potential witnesses.
Because the Respondent had already filed an answer when the
Complainant filed the Notice of Dismissal, and because there was
no stipulation of dismissal the Secretary concluded that the
dismissal must be with leave of the court pursuant to Fed. R.
Civ. P. 41(a)(2), as made applicable by 29 C.F.R. § 18.1(a).
Under Rule 41(a)(2), the court's order is to be "upon such
terms and conditions as the court deems proper."
The Secretary, however, declined to impose the sanction of
dismissal with prejudice, finding that the delays in the instant
case did not rise to the level of failure to prosecute. The
Secretary noted that the Federal Rule assumes that a voluntary
dismissal is without prejudice unless the order states otherwise,
Fed. R. Civ. P. 41(a)(2), and that an involuntary dismissal for
failure to prosecute or comply with the rules operates as an
adjudication upon the merits (or "with prejudice")
unless the order specifies otherwise. Fed. R. Civ. P. 42(b).
In Howe v. Afftrex, Ltd., 94-ERA-8 (ALJ Sept. 20,
1994), the Complainant withdrew his complaint on the ground that
new counsel advised him to drop the case and "seek a
different case against Afftrex LTD only at a later date."
One of the Respondents requested as a condition imposed under
Rule 41(a)(2) that the granting of Complainant's motion is
subject to a determination that the dismissal precludes any
further legal remedy against it under the ERA. The ALJ held that
in view of the expiration of the limitations period further
complaints under the ERA are barred, and accordingly recommended
that the complaint be dismissed without prejudice.
XVIII B 4 Dismissal without prejudice; imposition of
conditions
In Brown v. Holmes & Narver, 90-ERA-26 (Sec'y
Aug. 31, 1992), the Secretary approved the ALJ's recommended
order of dismissal without prejudice. The complainant sought
dismissal without prejudice because he had filed a state court
proceeding which had been stayed pending final resolution of the
ERA case. The ALJ's recommendation imposed several conditions on
dismissal without prejudice, namely, the complainant's
reimbursement of respondent's copying costs,
answering of all interrogatories propounded by the
respondent in the case, and
agreeing that all evidence gathered by the respondent in
the case may be used in any further action by the
complainant against the respondent.
The Secretary agreed with the ALJ's analysis that to avoid legal
harm or prejudice to a respondent as the result of a dismissal
without prejudice, a complainant need pay only for items that
will not be useful to respondent in defending an anticipated
litigation in another forum.
In his recommended order to dismiss, Brown v. Holmes &
Narver, 90-ERA-26 (ALJ Dec. 19, 1990), the ALJ wrote that
while a claimant's payment of certain attorney's fees is often a
condition to permit voluntary dismissal without prejudice, such a
condition is not required, and other conditions may be attached
to such a dismissal instead. See Davis v. USX Corp., 819
F.2d 1270, 1276 (4th Cir. 1987); Cants v. Ford Motor Co.,
781 F.2d 855 (11th Cir. 1985); 5 Moore's Federal Practice, §
41.06, p. 41-79 (1984); 9 Wright & Miller, Federal Practice
&
Procedure § 2366, p.181 (1978). One of the factors to
consider is the hostility which the litigation has provoked.
Mutual allegations of abuse of the discovery process are not to
be overlooked in determining the appropriate conditions, if any,
to attach to an order of dismissal without prejudice. Puerto
Rico Maritime Shipping Authority v. Leith, 668 F.2d 46, 51
(1st Cir. 1981). A complainant's relative lack of wealth in
comparison with a respondent is not an appropriate consideration
in determining whether to attach conditions to an order
dismissing a complainant without prejudice. See Taragan v.
Eli Lilly, 838 F.2d 1337 (D.C. Cir. 1988).
In whistleblower cases, the conditional payment of attorney's
fees is a requirement which "should be exercises only to
protect a respondent's legitimate interest in the avoidance of
legal harm or prejudice." Stokes v. Pacific Gas &
Electric Co./Bechtel Power Corp., 84-ERA-6 (Sec'y July 26,
1988), slip op. at 2. See also Nolder v. Raymond Kaiser
Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985). Alleged
whistleblowers should not be discouraged from reporting health
and safety hazards or from filing discrimination complaints. It
follows that complainants should not be discouraged from pursuing
their claims before the Department of Labor merely because it may
appear at some later date that an action before a state court is
an alternative. See generally Polizzi v. Gibbs & Hill,
Inc., 87-ERA-38 (Sec'y July 18, 1989), slip op. at 2-3;
English v. General Electric Co., 110 S.Ct. 2270, 2277
(1990). Although stated by the ALJ not to be dispositive, this
policy concern was considered in determining whether to condition
the dismissal.
In general, only those attorney's fees which relate to items
which would not be useful in an anticipated litigation may be
chargeable as a condition to dismissal without prejudice.
Davis v. USX Corp., supra; McLaughlin v. Chesire, 676 F.2d
855 (D.C. Cir. 1982); Canley v. Wilson, 754 F.2d 769 (7th
Cir. 1985). The ALJ examined the costs incurred by the
respondent, and concluded that only some copying expenses would
have no relative value in future litigation.
In Howe v. Affrex, Ltd., 94-ERA-8 (Sec'y Dec. 12,
1994), Complainant filed a written
request to withdraw his ERA complaint, indicating that he
intended to "seek a diffrent [sic] case
against [one of the two Respondents] only at a later date."
The Respondent the Complainant
intended to sue later did not resist dismissal. The other
Respondent raised no objection to voluntary
dismissal without prejudice but requested the ALJ to note, as a
condition pursuant to Fed. R. Civ. P.
41(a)(2), that a grant of Complainant's motion effectively
precludes any future legal remedy against it
under the ERA.
The Secretary took the view, however, that the parties'
statements amount to a stipulation of dismissal
without prejudice as provided in Rule 41(a)(1)(ii). Nonetheless,
in a footnote the Secretary observed
"that the 'condition' requested by Martin Marietta occurs by
operation of law when a case is
dismissed without prejudice. A dismissal without prejudice does
not toll a statute of limitations --
expiration of the limitations period will bar a complainant from
filing another ERA complaint based on
the same facts." Slip op. at n.1 (citations omitted).
In Yarbrough v. U.S. Dept.
of the Army, Chemical Agents Munitions Disposal System, ARB No. 05-117,
ALJ No. 2004-SDW-3 (ARB Aug. 30, 2007), the ARB held that the ALJ was required
under the rule then in effect at 29 C.F.R. � 24.6(e)(4) to issue an order to
show cause prior to dismissing a whistleblower complaint for failure to respond
to the Respondent�s motion for summary decision.� The ALJ had cited a local
rule of a federal district court that provided that a failure to respond to a
motion shall constitute consent to the granting of the motion.� The ARB,
however, found no such provision in the whistleblower regulation.�� While the
matter was on appeal, the Department had issued amendments to Part 24, the
effect of which is that 29 C.F.R. Part 18, and specifically Rule 18.6(d)(2)(v)
would now apply.� The ARB declined to decide whether that rule would require an
order to show cause prior to a dismissal, but observed that ALJs routinely
issue such orders or warnings specifying the consequences of failure to comply
prior to dismissing cases under the Part 18 rules.
XVIII C 2 Substitution of hearing for
order to show cause
In Nolder v. Raymond Kaiser Engineers, Inc., 84-
ERA-5 (Sec'y June 28, 1985), an issue was whether 20 C.F.R.
§ 24.5(e)(4)(ii) was applicable to a voluntary withdrawal of
the complaint. The ALJ ruled that the section was applicable
(but still required reference to the federal rules), and noted
that although the section directs the issuance of an order to
show cause, the parties were afforded the same opportunity to
brief and argue the merits of Complainant's motion at a hearing
as they would have been if the matter were being decided after
issuance of an order to show cause. The Secretary agreed that a
hearing adequately substituted for the order to show cause if the
section was applicable.
The Secretary ultimately did not decide whether the section was
applicable because the Federal Rule had to be resorted to in any
case.
[Editor's note: The Secretary later did rule that section
24.5(e)(4) was not applicable (see Digest at XVIII A 1 and
Nunn v. Duke Power Co., 84-ERA-7 (Sec'y Sept. 29, 1989).),
but this casenote is still relevant insofar as it illustrates
that procedures other than an order to show cause may be used in
section 24.5(e)(4) dismissals.]
The regulations implementing the ERA at 29 C.F.R. §
24.5(e)(4)(ii) govern dismissals for cause; it takes precedence
over the general rules of practice and procedure in 29 C.F.R.
Part 18. Section 24(e)(4)(ii) provides that where a dismissal is
contemplated, the ALJ "shall issue an order to show cause
why the dismissal should not be granted and afford all parties a
reasonable time to respond to such order." Thus, where the
ALJ had allowed several continuances for the complainant to
submit his prehearing statement, each one providing that
"[f]ailure to timely comply with this Order without good
cause will result in the DISMISSAL of the proceeding or
the imposition of other appropriate sanctions," the
Secretary found that the warning was not enough because it did
not order the complainant to show cause why dismissal was not
warranted nor provided him with an opportunity to address the
good cause issue. Because dismissal is a drastic sanction, the
Secretary concluded that strict compliance with the applicable
regulation is required, and remanded the cases for the ALJ to
follow the procedure outlined in section 24.5(e)(4).
Billings v. Tennessee Valley Authority, 89-ERA-16
and 25 and 90-ERA-2, 8 and 18 (Sec'y Jan. 9, 1992) (the
complainant's cases were ultimately dismissed for his
"contumacious conduct" -- see the Secretary's July 29,
1992 Final Decision and Order).
In the following cases, the ALJ dismissed the case under 29
C.F.R. § 24.5(e)(4). Such dismissals may not have to be
reviewed by the Secretary. See*/:
Jensen v. Burns International Security Services,
87-ERA-14 (ALJ Dec. 28, 1987) (after complainant requested
continuance, he submitted a letter requesting withdrawal; ALJ
issued order to show cause; when no response was received, ALJ
dismissed under section 24.5(e)(4)(ii)).
Cummings v. Pinkerton's Inc., 87-ERA-16 (ALJ Apr.
20, 1988) (ALJ issued "Recommended Decision and Order"
recommending dismissal based on the complainant's failure to
attend the scheduled hearing, and did not specifically cite
section 24.5(e)(4)(i); ALJ found that complainant's response to
order to show cause (conflicting job interview and breakdown in
communication to judge re conflict) failed to establish good
cause).
__________
*/ Whether such dismissals must be reviewed by the
Secretary is not clear. In several cases, the Secretary has
stated that an ALJ's decision is only a recommended decision,
"except in limited circumstances," citing 29 C.F.R.
§ 24.5(e)(4). Cowan v. Bechtel Construction, Inc.,
87-ERA-29 (Sec'y Aug. 9, 1989); Wensil v. B.F. Shaw Co.,
86-ERA-15, 87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29, 1990),
aff'd sub nom. on another issue, Adams v. Dole, 927 F.2d
771 (4th Cir. 1991), cert. denied, 116 L. Ed. 2d 90
(1991).
Section 24.5(e)(4) indicates that an ALJ "may dismiss"
a claim upon the failure of the complainant and/or his or
representative to attend a hearing without good cause, or upon
the failure of the complainant to comply with a lawful order of
the ALJ. Arguably, this language gives the ALJ the authority to
dismiss a claim for failure to attend or failure to comply with a
lawful order, without further review by the Secretary. In
Powell v. Tulsa Gamma Ray, Inc., 89-ERA-33 (ALJ July 18,
1989), the OAA returned the case file to this Office with a
letter stating that the Secretary did not need to review this
dismiss. In Powell the ALJ dismissed based on the
complainant's failure to appear at the scheduled hearing, and his
failure to respond to the ALJ's subsequent order to show
cause.
On the other hand, the Secretary has reviewed a number of cases
in which the dismissal was based on failure to attend the hearing
or failure to comply with a lawful order. See, e.g., Young v.
CBI Services, Inc., 88-ERA-8 (Sec'y Aug. 10, 1988) (ordering
remand where ALJ found to have abused his discretion in
dismissing a case for the complainant's failure to attend the
hearing; in Young, however, the complainant did respond to
the order to show cause).
[N/E Digest XVIII C 3]
DEFAULT JUDGMENT FOR FAILURE TO ATTEND HEARING; ALJ
RECOMMENDATION MAY BE WAIVED BY SECRETARY
In Coupar v. U.S. Dept. of
Labor, No. 95-70400
(9th Cir. Jan. 30, 1997) (available at 1997 U.S. App. LEXIS 1523)(case below 92-TSC-6), a
prison inmate requested a hearing on his CAA and TSCA whistleblower complaints against
Federal Prison Industries. The ALJ scheduled a hearing, but the Bureau of Prisons refused to
allow a hearing to take place at the prison, and instead called the proceeding a deposition. The
Bureau also refused to acknowledge the jurisdiction of the ALJ over Complainant's claim, and
did
not participate in the proceeding. The ALJ recommended a default judgment in Complainant's
favor, although he also addressed the merits of the case. The Secretary of Labor rejected the
ALJ's recommended decision and order, and concluded that Complainant was not an employee
within the meaning of the Acts. The Seventh Circuit affirmed the Secretary's ruling.
Complainant argued before the Seventh Circuit that because the Bureau failed to appear,
he
was entitled to a default judgment. The court, however, noted that the Secretary had the
discretion whether to grant a default judgment, 29 C.F.R. § 18.39(b), and found that The
Secretary did not abuse his discretion by rejecting the ALJ's recommended default judgment.
The
court noted that the Bureau was not "without good cause" in believing that it was not
required to attend the ALJ proceedings.
XVIII C 3 ALJ dismissals for cause are
"recommended"
Dismissals for cause under 29 C.F.R. § 24.5(e)(4) are
"recommended" orders, subject to review by the
Secretary. Avery v. B & W Commercial Nuclear Fuel
Plant, 91-ERA-8 (Sec'y Oct. 21, 1991), slip op. at 3.
Rodolico v. Venturi, Rauch and Scott Brown, 89-CAA-
4 (Sec'y Feb. 21, 1992) (appeal pending in 3d Cir. No. 92-3314).
XVIII C 3 ALJ Dismissal Orders
The Secretary clarified her position stating that dismissal
orders by the ALJs under the provisions of section 24.5(e)(4) are
not final orders, but are recommended decisions, reviewable by
the Secretary under 29 C.F.R. § 24.6. Any perceived
precedent to the contrary shall not be followed.
Avery v. B & W Commercial Nuclear Fuel Plant,
91-ERA-8 (Sec'y Oct. 21, 1991).
In Gasaway v. Baldwin Associates, 81-ERA-8 (ALJ
Sept. 28, 1981), Complainant failed to appear at the hearing and
failed to answer a subsequent order to show cause. Accordingly,
the ALJ dismissed the complaint with prejudice, citing 29 C.F.R.
§ 24.5(e)(4).
[Editor's note: This case was apparently never forwarded for
Secretarial review. This was well before the Secretary clarified
in Avery v. B & W Commercial Nuclear Fuel Plant, 91-
ERA-8 (Sec'y Oct. 21, 1991), that such orders are recommended and
not final.]
[Nuclear & Environmental Whistleblower Digest XVIII C 4]
DISMISSAL FOR CAUSE; FAILURE TO ATTEND HEARING OR RESPOND TO
ORDER TO SHOW CAUSE
In Steiner v. The City of Canton,
2001-WPC-1 (ALJ Jan. 7, 2002), a copy of the notice of hearing served on the Complainant by
certified mail, return receipt requested, was returned as unclaimed by the U.S. Postal Service
after three attempts at delivery. A second copy of the notice was sent by regular and certified
mail. The certified mail was again unclaimed, but the regular mail copy was not returned as
undeliverable. The Complainant did not show up the hearing. The ALJ issued an order to show
cause by regular and certified mail, and again the certified mail was not claimed but the regular
mail was not returned as undeliverable. Complainant did not respond to the order to show
cause, and the ALJ recommended dismissal of the case with prejudice.
[N/E Digest XVIII C 4]
DISMISSAL FOR FAILURE TO ATTEND HEARING
In Durakovic v. Dept. of Veterans
Affairs, 97-ERA-39 (ALJ Aug. 28, 1997), the ALJ recommended dismissal of the
complaint with prejudice based on the failure of Complainant or a representative to appear at the
scheduled hearing, and Complainant's lack of response to Respondent's subsequent motion to
dismiss for failure to prosecute. The ARB issued an order to show cause, and dismissed the
complaint when Complainant declined to respond. Durakovic v. Dept. of Veterans
Affairs, 97-ERA-39 (ARB Sept. 16, 1997).
XVIII C 4 Failure to attend hearing
In Young v. CBI Services, Inc., 88-ERA-8 (Sec'y
Aug. 10, 1988) (order of remand), the Secretary rejected the
ALJ's recommendation of dismissal based on the failure to show
good cause for the complainant and the complainant's attorney to
appear at the scheduled hearing. In response to the ALJ's order
to show cause, counsel stated that there had been a
misunderstanding between the complainant and his counsel about
the date of the hearing. Counsel had not been served with a
notice of the hearing, and was told the wrong date by the
complainant. He requested a postponement more than a week in
advance of the erroneous date. The ALJ found that the
complainant and his attorney were guilty of "inexcusable
neglect." The Secretary, however, found that a careful
exercise of discretion laid in favor of not denying the
complainant his day in court for a simple mistake.
XVIII C 4 Dismissal; failure to appear at hearing;
failure to comply with order
Dismissal with prejudice is a severe sanction which must be
tempered by a careful exercise of judicial discretion and should
not be ordered in the absence of willful and contumacious
conduct. Dismissal with prejudice is proper under 29 C.F.R.
§ 24.5 (e)(4), however, where as a dilatory tactic a
complainant deliberately fails to appear at his evidentiary
hearing and to comply with Respondent's discovery request, and
the ALJ's pre-hearing order. The appearance of Complainant's
attorney does not render section 24.5 (e)(4) inapplicable since
that section provides that the ALJ may dismiss a claim upon the
failure of the complainant or the representative to appear. Where
the case arises within the jurisdiction of the Seventh Circuit,
the ALJ is not required to "fire a warning shot,"
Patterson v. Coca-Cola Bottling Co., 852 F.2d 280,284 (7th
Cir. 1988), nor to impose any lesser sanctions as a prerequisite
to dismissal, Daniels v. Brenner, 887 F.2d 783, 788-89
(7th Cir. 1989).
Ridings v. Commonwealth Edison, 88-ERA-27 (Sec'y
Sept. 20, 1991).
[NOTE: ALJ issued show cause order as required by 29 C.F.R.
§ 24.5(e)(4)(ii)]
XVIII C 4 Failure to appear at hearing
When a Complainant fails to appear at a hearing, the appropriate
regulatory authority for dismissal for failure to appear is found
at 29 C.F.R. § 24.5(e)(4)(i). Tracy v. Consolidated
Edison Co. of New York, Inc., 91-TSC-2 (Sec'y Jan. 24,
1994).
XVIII C 4 Failure to appear at hearing
In Borchert v. Tennessee Valley Authority, 90-ERA-
57 (Sec'y Mar. 9, 1992), the Secretary agreed with the ALJ's
recommendation to dismiss the complaint pursuant to 29 C.F.R.
§ 24.5(e)(4)(i)(A) based on the complainant's failure to
appear at the hearing. The complainant moved for a continuance
outside of the time permitted for such a motion by the ALJ's
order scheduling the hearing. The ALJ denied the motion because
the complainant failed to indicate any reasons for making the
request outside the permitted time. When the complainant failed
to attend the hearing, the ALJ issued an order to show cause
pursuant to 29 C.F.R. § 24.5(3)(4)(ii), and when the
complainant failed to respond, he issued a Recommended Order of
Dismissal.
XVIII C 4 Dismissal for cause
An ERA case may be dismissed for cause under 29 C.F.R. §
24.5(e)(4)(i)(A), where the Complainant fails to attend the
hearing and fails to respond to the ALJ's order to show cause why
the complainant should not be dismissed for failure to attend the
hearing without good cause. Avery v. B & W Commerical
Nuclear Fuel Plant, 91-ERA-8 (Sec'y Oct. 21, 1991).
XVIII C 4 Dismissal for failure to attend hearing
Where the Complainant did not appear at the hearing and did not
respond to the ALJ's order to show cause why the complaint should
not be dismissed for abandonment and failure to appear at the
hearing, dismissal was appropriate pursuant to 29 C.F.R. §
24.5(e)(4)(i) and (ii). The Secretary noted that the ALJ's order
was not entitled "Recommended Decision and Order," and
that under the WPC's implementing regulations, 29 C.F.R. Part 24
(1992), except in limited circumstances, and ALJ's decision is a
recommended decision, and final orders must be issued by the
Secretary. 29 C.F.R. § 24.6. Mitchell v. United
States Army, 93-WPC-5 (Sec'y Oct. 1, 1993).
[Editor's note: I'm not sure what "limited
circumstances" are appropriate for an ALJ to issue the final
order. This would seem to fall into that category if any cases
do. The Secretary also noted that the ALJ did not cite the
applicable regulations for the dismissal.]
XVIII C 4 Failure to appear at hearing
When a Complainant fails to appear at a hearing, the appropriate
regulatory authority for dismissal for failure to appear is found
at 29 C.F.R. § 24.5(e)(4)(i). Tracy v. Consolidated
Edison Co. of New York, Inc., 91-TSC-2 (Sec'y Jan. 24,
1994).
XVIII C 4 Dismissal for failure to attend hearing
Where the Complainant did not appear at the hearing and did not
respond to the ALJ's order to show cause why the complaint should
not be dismissed for abandonment and failure to appear at the
hearing, dismissal was appropriate pursuant to 29 C.F.R. §
24.5(e)(4)(i) and (ii). The Secretary noted that the ALJ's order
was not entitled "Recommended Decision and Order," and
that under the WPC's implementing regulations, 29 C.F.R. Part 24
(1992), except in limited circumstances, and ALJ's decision is a
recommended decision, and final orders must be issued by the
Secretary. 29 C.F.R. § 24.6. Mitchell v. United
States Army, 93-WPC-5 (Sec'y Oct. 1, 1993).
XVIII C 4 Lack of cooperation; failure to attend hearing
In Coupar v. Federal Prison Industries/Unicor, 92-
TSC-6 and 8 (ALJ June 11, 1992), Respondent maintained that the
ALJ had no jurisdiction to consider a federal prison inmates'
whistleblower complaint, induced the ALJ to conducting the
hearing at the prison rather than DOL's courtroom, but refused to
permit him to conduct an "adversarial hearing" at the
prison, although it allowed him to conduct a
"deposition" at which none the subpoenaed employees for
Respondent appeared and at which counsel did not enter an
appearance (although counsel was present at the prison).
The ALJ took the testimony of Complainant and a fellow inmate.
In his recommended decision, the ALJ recommended finding
Respondent in default under 29 C.F.R. §§ 18.5(b) and
18.39. The ALJ proceeded, however, to decide the case on the
merits based on the record presented.
XVIII C 4 Dismissal for failure to appear at
hearing
The Secretary dismissed the Complainant's case where the
Secretary has issued an Order to Show Cause why the complaint
should not be dismissed for failure to appear at the scheduled
hearing and the Complainant has not responded within the allotted
time. Grizzard v. Tennessee Valley Authority, 91-
ERA-41 (Sec'y May 4, 1994).
Where, acting through counsel, the complainant filed an appeal of
the denial of his ERA whistleblower claim by the District
Director, in a conference call several weeks later the
complainant's counsel stated that he had not spoken with the
complainant since filing the appeal and the ALJ ordered the
counsel to attempt to contact the complainant and report the
result, the attempt was not successful, the ALJ then issued an
order to show cause why the claim should not be dismissed as
having been abandoned, the complainant did not respond to the
order nor to the ALJ's subsequent recommended order of dismissal,
the Secretary agreed with the ALJ that the case must be
dismissed. 29 C.F.R. §§ 24.5(e)(4)(i)(B) and (ii),
18.39(b); see B.R. McCrumb v. Westinghouse Radiological
Services, Inc., 92-ERA-42 (Sec'y Apr. 9, 1992), slip op. at
2.
Johnson v. Commonwealth Edison Co., 92-ERA-25
(Sec'y Sept. 23, 1992).
XVIII C 5 DISMISSAL; ABANDONMENT
In Moody v. Tennessee
Valley Authority, 93-ERA-14 (Sec'y June 28, 1995),
the Respondent moved to dismiss after the Complainant failed to
appear for a deposition and based on Complainant's statements
that he intended to dismiss the complaint. Complainant responded
to the ALJ's order to show cause why the complaint should not be
dismissed by asking for more time to retain counsel. The ALJ
allowed 30 additional days for the Complainant to retain counsel,
but warned that if Complainant failed to notify the ALJ that he
had retained counsel and desired to pursue the claim, the
complaint would be dismissed. The Complainant did not provide
the required notification, and the Secretary accepted the ALJ's
recommendation of dismissal for abandonment pursuant to 18 C.F.R.
§ 18.39(b).
XVIII C 5 Abandonment
The counsel for the complainant in Lint v. Illinois Power
Co., 87-ERA-18 (ALJ Apr. 21, 1987), filed a motion to
dismiss, which stated:
Now comes the Complainant, Mitchell Lint, by his
attorneys, Arnold, Gesell & Schwulst, and moves that the
Administrative Law Judge enter an order herein dismissing
the complaint filed by the Complainant, Mitchell Lint, on
grounds that he does not believe that he will receive a
full, fair, deliberate and unbiased trial herein.
ALJ slip op. at 1.
The Secretary noted that the ALJ did not refer to any regulatory
authority for the dismissal. She concluded that "the
circumstances of this case fall within the provisions of 29
C.F.R. § 18.39(b) (1988), Dismissal-Abandonment by Party,
and that dismissal of this case is appropriate." Lint
v. Illinois Power Co., 87-ERA-18 (Sec'y Mar. 16,
1989).
XVIII C 5 Dismissal for abandonment
In Billings v. Bechtel Group, 89-ERA-45 (ALJ July
20, 1993), the case was continued on September 28, 1989 at
Complainant's request based on ill health. On March 29, 1993,
the ALJ issued an order to show cause why the case should not be
dismissed for lack of jurisdiction (Wage & Hour had
determined that Respondent was not subject to the ERA), or
abandonment. Having received no response from Complainant to the
order to show cause, the ALJ recommended dismissal based on
abandonment.
XVIII C 5 Abandonment
In Moody v. Tennessee Valley Authority, 93-WPC-14
(ALJ Nov. 23, 1993), the ALJ recommended dismissal based on
abandonment where:
the hearing was continued because the parties averred
that they were in the process of settling;
no proposed settlement was submitted, and the ALJ
ordered a status report;
Complainant did not respond and Respondent filed a
motion to dismiss on the basis of Complainant's failure
to appear for a scheduled deposition, Complainant was
the person who requested the cancellation of the
hearing, and Complainant had repeatedly stated that he
intended to dismiss the proceeding;
the ALJ issued a Rule To Show Cause; Complainant
asserted that he needed more time to retain counsel;
the ALJ held that Complainant had over a year since he
filed his complaint with DOL to retain counsel and
ordered Complainant to file a statement within 30 days
that he had retained counsel and desired to pursue the
complaint, or suffer dismissal.
Complainant did not answer the order.
XVIII C 5 Dismissal; abandonment; failure to comply with
ALJ's lawful orders
Where the complainant did not respond to the ALJ's order
directing the complainant to provide his new mailing address and
phone number and notifying the complainant that his failure to do
so would imply abandonment, did not file any response to the
ALJ's subsequent order to show cause, or his recommended order of
dismissal, the Secretary agreed with the ALJ that the case must
be dismissed. 29 C.F.R. § 24.5(e)(4)(i)(B) and (ii),
18.39(b); see 29 C.F.R. § 18.1(a); Avery v. B
& W Commercial Nuclear Fuel Plant, 91-ERA-8 (Sec'y Oct.
21, 1991), slip op. at 3-4. The complainant had requested a
postponement of the hearing on the basis that he was relocating
his residence, and although the complainant indicated that he
would contact the ALJ the next month, he made no further
communication. McCrumb v. Westinghouse Radiological
Services, Inc., 89-ERA-42 (Sec'y Apr. 9, 1992).
In Billings v. Reich, No. 92-3927 (6th Cir. June 1,
1994) (unpublished) (available at 1994 U.S. App. LEXIS 13250),
the Sixth Circuit upheld the dismissal of the complaint based on
the Complainant's failure to comply with the ALJ's orders
directing the filing of prehearing submissions, and upon DOL's
provision of adequate predismissal notice.
The Secretary had remanded to the ALJ for issuance of an order to
show cause prior to dismissal, which the ALJ did, and upon
finding inadequate reasons for the failure to comply with the
orders for prehearing submissions, recommended dismissal, which
the Secretary adopted.
[Nuclear & Environmental Whistleblower Digest XVIII C 6] DISMISSAL FOR CAUSE; FAILURE TO COMPLY WITH LAWFUL ORDERS
In Reid v. Niagara Mohawk Power Corp., 2002-ERA-3 (ALJ Dec. 26, 2002), the ALJ recommended dismissal of the complaint where Complainant completely disregarded three separate prehearing orders issued by the ALJ, and failed to attend his scheduled deposition without good cause.
[Nuclear & Environmental Whistleblower Digest XVIII C 6] DISMISSAL FOR CAUSE; FAILURE TO COMPLY WITH LAWFUL ORDERS
In Puckett v. Tennessee Valley Authority, 2002-ERA-15 (ALJ Nov. 21, 2002), the ALJ recommended dismissal of the complaint where Complainant's attorney repeatedly refused to comply with the ALJ's orders and displayed contumacious conduct. The attorney, for example, repeatedly refused to comply with the ALJ's direction not to use faxes for the filing of documents; attempted to take control of the scheduling of the case by repeated last minute notifications of alleged conflicts and then refused to answer the court's questions about those alleged conflicts; filed scandalous, disparaging and impertinent remarks about the ALJ of the type about which the ARB warned the attorney in an order denying an interlocutory appeal; rather than complying with the ALJ's order to submit discovery to Respondent, sent the discovery response to the District Chief ALJ for "safekeeping" to be sent to Respondent only upon its agreement to a simultaneous exchange; and rather than heeding the ARB's warning about unprofessional, offensive excoriation, heightened his verbal assault on the ALJ to include suggestions that the ALJ suffered from diagnosable mental illness. The ALJ found that the attorney's failure to comply with the Scheduling Order "was a deliberate, unjustified delaying tactic and a deliberate expression of contempt for the Court." The ALJ observed that the abuse came from the attorney and not the Complainant himself, but noted that Complainant was served with all documents and thus was aware of his attorney's behavior. Noting the attorney's history of disregard and/or disobedience of orders and warnings from the ALJ in the instant case and before other ALJ's, the ARB and federal courts in other cases the ALJ concluded that sanctions less severe than dismissal had been ineffective in the past.
[N/E Digest XVIII C 6]
DISMISSAL; FAILURE TO RESPOND TO ALJ'S ORDER TO SHOW CAUSE
In Jackson v. Northeast Utilities
Co., 98-ERA-6 (ARB June 22, 1998), the ALJ had issued an order to show cause
because the record did not reveal that Complainant had ever filed a request for a hearing
following issuance of OSHA's determination letter. Complainant did not respond, and the ALJ
recommended dismissal both because Complainant did not file a request for a hearing and
because Complainant did not respond to the order to show cause. The ARB affirmed the ALJ on
the ground of Complainant's failure to respond to the order to show cause.
To the same effect: Staskelunas v.
Northeast Utilities Co., 98-ERA-8 (ARB May 4, 1998)(Complainant's counsel
only submitted a status inquiry letter after the time period expired for responding to the order to
show cause).
[N/E Digest XVIII C 6]
DISMISSAL FOR CAUSE; COMPLAINANT'S CONDUCT
In Tracanna v. Arctic Slope Inspection Service, 97-WPC-1 (ARB Nov.
6, 1997), the ARB rejected the ALJ's Recommended Order of Dismissal, in which the ALJ had
found that Complainant had demonstrated a pattern of refusing to cooperate in the discovery
process.
In Tracanna, Complainant, who was proceeding pro se, did not
timely respond to Respondent's initial discovery and admissions requests, or seek additional time
to respond. Upon Respondent's motion, the ALJ issued an order directing Complainant to
answer the discovery requests and to show cause why the requests for admissions should not be
deemed admitted. Complainant did not respond to the ALJ's order, although he was actively
pursuing other aspects of his case, such as filing a FOIA request with DOL, submitting his own
discovery requests, and participating in settlement negotiations. The ALJ issued an order finding
that Respondent's requests for admissions were deemed admitted. Respondent then moved for
additional sanctions for Complainant's failure to respond to the discovery requests. The ALJ
granted the motion the following day, ordering that the evidence requested in Respondent's
interrogatories was deemed adverse to Complainant, and barring Complainant from relying on
testimony of any witness not identified in the discovery responses, including expert witnesses,
and from introducing documents or other evidence he failed to produce. The ALJ also ordered
that Complainant could not object to the introduction and use of secondary evidence to show
what the withheld admissions, testimony, documents or other evidence may have shown.
Complainant thereafter wrote to the ALJ explaining that he had difficulty finding an
attorney, and had not received any advice when he asked the ALJ's office for help. He stated that
the sanctions appeared to eliminate his case, and asked whether an appeal was possible. The ALJ
treated the letter as a motion for reconsideration of the sanctions order, and denied it.
Next, since Complainant was unavailable on the date noticed for his deposition, he had
arranged a later date with Respondent. The day of the rescheduled deposition, Complainant
called Respondent's counsel to state that he would not make himself available for the deposition.
Respondent moved to dismiss, and the ALJ issued an order to show cause. Complainant
submitted a response apologizing for not responding quickly enough to orders and discovery
requests and explaining that he viewed the order for sanctions as superseding the merits of his
case. The ALJ then issued his recommended order of dismissal based on the factors stated in
Malpass v. General Electric Co., 85-ERA-39 (Sec'y Mar. 1, 1994), for determining
whether dismissal is warranted based on misconduct:
(1) Complainant's degree of personal responsibility;
(2) the amount of prejudice to the Respondent;
(3) the presence of a drawn out history of deliberately proceeding in a dilatory
fashion; and
(4) the effectiveness of sanctions less drastic than dismissal.
The ARB agreed with the use of the Malpass factors, but found that dismissal was
inappropriate. The ARB cited the following factors:
·
Complainant had not exhibited a drawn out history of
deliberately proceeding in a dilatory fashion (the ARB noting that Complainant timely responded
to several of the ALJ's show cause orders, albeit not the order regarding sanctions for failure to
answer discovery);
·
Complainant was proceeding pro se, and although
he did not request additional time to respond to discovery, such requests are routinely granted;
·
Respondent had not established a good faith attempt to
resolve discovery disputes informally before resorting to the intervention of the ALJ;
·
Complainant did not simply fail to appear for his
scheduled deposition; rather he called Respondent's counsel and explained that in view of the
ALJ's sanctions order he no longer had a case and that the deposition would be a waste of
everyone's time;
·
the ALJ's sanctions order did effectively prevent
Complainant from presenting any case whatsoever;
·
Complainant's difficulty finding an attorney;
·
Complainant's active participation and seeking of
information needed to prove his case (i.e., his FOIA request, submission of discovery
requests, and participation in settlement negotiations);
·
lack of prejudice to Respondent in permitting the case to
proceed;
·
that the ALJ's conclusion that sanctions less severe than
dismissal had been ineffective was faulty insofar as the ALJ's earlier sanctions were so effective
that they had rendered Complainant's further participation useless;
·
that the ARB was confident that Complainant "now
understands the severity of potential consequences for not complying with discovery requests
and orders";
·
the ALJ could consider Complainant's past actions in
regard to any renewed motion to dismiss in response to future missed deadlines;
· that "[o]nly six weeks elapsed between the time
[Complainant] first missed a discovery deadline . . . to the time that his case was eviscerated
..." and that during that time he had actively pursued other aspects of his case.
The ARB vacated the ALJ's order deeming that the request for admissions to be admitted
and the order imposing sanctions for failure to comply with discovery requests.
[N/E Digest XVIII C 6]
DISMISSAL FOR FAILURE TO COMPLY WITH ALJ'S PREHEARING ORDERS
In Chalk v. Jerry l. Pettis Memorial Veterans
Affairs Medical Center, 97-ERA-4 (ARB Sept. 9, 1997), the ARB dismissed the
complaint after issuing an order to show cause and receiving no response from Complainant.
The ALJ had issued a Recommended Order of Dismissal based on Complainant's repeated failure
to comply with the ALJ's orders requiring him to file a prehearing statement, or to response to
the ALJ's order to show cause why the complaint should not be dismissed. Chalk v. Jerry l. Pettis Memorial Veterans Affairs
Medical Center, 97-ERA-4 (ALJ July 8, 1997).
To the same effect, see: Schooley v. Alyeska
Pipeline Service Co., 96-TSC-4 (ALJ June 3, 1996), adopted by ARB
following failure of Complainant to respond to its order to show cause in regard 96-TSC-4 and a
consolidated case, Schooley v. Alyeska
Pipeline Service Co., 96-TSC-4 and 97-TSC-5 (ARB Sept. 8, 1997) (ALJ had
issued order to show cause based on apparent coverage of complaint by earlier settlement;
Complainant did not respond, and ALJ recommended dismissal for abandonment).
DISMISSAL FOR FAILURE TO RESPOND TO LAWFUL ORDER OF ALJ
[N/E Digest XVIII C 6]
In Billings v.
Tennessee Valley Authority, 91-ERA-12 (ARB June
26, 1996), the ALJ issued an order to show cause why the case
should not be dismissed due to the failure of Complainant to
comply with an earlier prehearing order. Complainant's response
avoided the issue, and did not contain a denial that he failed to
comply with the ALJ's prehearing order. The Board held that the
ALJ's dismissal of the complaint with prejudice was proper
pursuant to 29 C.F.R. § 24.5(e)(4)(I)(B).
XVIII C 6 Dismissal; failure to appear at hearing;
failure to comply with order
Dismissal with prejudice is a severe sanction which must be
tempered by a careful exercise of judicial discretion and should
not be ordered in the absence of willful and contumacious
conduct. Dismissal with prejudice is proper under 29 C.F.R.
§ 24.5 (e)(4), however, where as a dilatory tactic a
complainant deliberately fails to appear at his evidentiary
hearing and to comply with Respondent's discovery request, and
the ALJ's pre- hearing order. The appearance of Complainant's
attorney does not render section 24.5 (e)(4) inapplicable since
that section provides that the ALJ may dismiss a claim upon the
failure of the complainant or the representative to appear.
Where the case arises within the jurisdiction of the Seventh
Circuit, the ALJ is not required to "fire a warning
shot," Patterson v. Coca-Cola Bottling Co., 852 F.2d
280,284 (7th Cir. 1988), nor to impose any lesser sanctions as a
prerequisite to dismissal, Daniels v. Brenner, 887 F.2d
783, 788-89 (7th Cir. 1989).
Ridings v. Commonwealth Edison, 88-ERA-27 (Sec'y
Sept. 20, 1991).
[NOTE; ALJ issued show cause order as required by 29 C.F.R.
§ 24.5(e)(4)(ii)]
XVIII C 6 Failure to comply with lawful orders
An ALJ may, on his own motion, dismiss an ERA complaint upon the
failure of the complainant to comply with a lawful order. 29
C.F.R. § 24.5(e)(4)(i)(B). In this regard, an
administrative agency's power to control its docket is similar to
that of a court. Dismissal with prejudice is warranted only
where there is a clear record of delay or contumacious conduct
and a lesser sanction would not better serve the interests of
justice. Consolidation Coal Co. v. Gooding, 703 F.2d 230,
232-33 (6th Cir. 1983).
In the instant case, the complainant had filed five complaints.
The ALJ, who had not yet made a decision on whether to
consolidate the cases, had required all prehearing submissions to
be submitted at the same time, but had provided ample time for
filing (94 days in total). The complainant, citing illness, had
refused to file anything unless the ALJ acceded to his demands
for separate filing dates.
The Secretary held that the complainant's refusal to take any
steps to comply with the ALJ's orders shows an unmistakable
pattern of contumacious conduct and is sufficient grounds for
dismissing the complaints. Consolidation Coal, 703 F.2d
at 233; Avery v. B & W Commercial Nuclear Fuel Plant,
91-ERA-8 (Sec'y Oct. 21, 1991) (dismissal warranted upon failure
to attend hearing and failure to respond to show cause order).
See Ahlberg v. Department of Health and Human Services,
804 F.2d 1242 (Fed. Cir. 1986) (failure to make any submission
after twice being told to do so is a failure to prosecute the
appeal).
Billings v. Tennessee Valley Authority, 89-ERA-16
and 25, and 90-ERA-2, 8 and 18 (Sec'y July 29, 1992).
XVIII C 6 Failure to file written withdrawal
In Spangenberger v. Briggs Associates, Inc., 92-
TSC-1 (ALJ Oct. 10, 1992), the hearing was postponed twice, and
the ALJ thereafter permitted the parties to attempt to resolve
the matter voluntarily. Subsequently, the parties informed the
ALJ that the complaint would be withdrawn with prejudice by
Complainant. After repeated requests and an order to show cause,
the parties did not file a letter of withdrawal. Finally, the
ALJ dismissed the request for a hearing and reinstated the
Secretary's Preliminary Findings pursuant to 29 C.F.R. §
24.5(e)(4)(B)(ii).
XVIII C 6 Oral withdrawal
In Spangenberger v. Briggs Associates, Inc., 92-
TSC-1 (ALJ Oct. 10, 1992), the parties advised the ALJ that the
complaint would be withdrawn with prejudice by the Complainant.
After repeatedly requesting a written withdrawal, the ALJ issued
an Order to Show Cause, warning that failure to file the document
would result in dismissal with prejudice. The parties did not
respond, and the ALJ issued a final order of dismissal.
[Editor's note: The ALJ reinstated the Secretary's Preliminary
Findings as the Final Order in the case, citing several
STAA cases. Those STAA cases, however, were based on different
regulatory procedures and it is probable that the ALJ's order of
dismissal should have been recommended rather than final.]
XVIII. C. 6. Dismissal for failure to comply with the
ALJ's lawful order
In Billings v. Reich, No. 92-3927 (6th Cir. June 1,
1994) (unpublished) (available at 1994 U.S. App. LEXIS 13250),
the Sixth Circuit upheld the dismissal of the complaint based on
the Complainant's failure to comply with the ALJ's orders
directing the filing of prehearing submissions, and upon DOL's
provision of adequate predismissal notice.
The Secretary had remanded to the ALJ for issuance of an order to
show cause prior to dismissal, which the ALJ did, and upon
finding inadequate reasons for the failure to comply with the
orders for prehearing submissions, recommended dismissal, which
the Secretary adopted.
XVIII.C.6. Dismissal of complaint as sanction
In Tennessee Valley Authority v. Reich, 1994
U.S. App. LEXIS 13255 (6th Cir. 1994), the Sixth Circuit found
that notwithstanding the APA's requirement that the Secretary
decide all pending motions before dismissing the complainants,
the Secretary's dismissal of the complainant's claims in
accordance with 29 C.F.R. § 24.5(e)(4) was a proper sanction
for his failure to comply with the ALJ's orders. The court also
upheld the Secretary's holding that once he had dismissed the
claims, the respondent's motions for summary judgment became
moot. The court also noted that the respondent lacked standing
to claim that the Secretary had not followed the APA, 5 U.S.C.
§ 557(c), because the respondent did not suffer any injury
from the Secretary's actions.
XVIII C 6 Failure to respond to order to show
cause
In Laretta v. Niagara Mohawk Power Co., 86-ERA-3
(Sec'y Apr. 21, 1986), the ALJ properly dismissed the complaint
under 29 C.F.R. § 24.5(e)(4)(i)(B) where the Complainant
failed to respond to the ALJ's order to show cause. The ALJ had
ordered the Complainant to show cause why the complaint should
not be dismissed for failure to state a cognizable complaint
under 29 C.F.R. Part 24. Laretta v. Niagara Mohawk Power
Co., 86-ERA-3 (ALJ Nov. 15, 1985) (order to show cause). The
Recommended Order -- Dismissing Complaint, however, was based on
the failure to respond to the order rather than the failure to
state a cognizable complaint. Laretta v. Niagara Mohawk Power
Co., 86-ERA-3 (ALJ Mar. 12, 1986).
XVIII C 6 Failure to comply with lawful orders
Malpass v. General Electric Co.,
85-ERA-38, 39 (Sec'y Mar. 1, 1994)
After the Wage & Hour Division of the Department of
Labor's Employment Standards Administration found no violation
pursuant to the complaint, the complainant filed a request for a
hearing. During pre-trial procedures, the complainant, at the
advice of counsel, refused to comply with various ALJ pre-hearing
and discovery orders, failed to respond to Respondent's discovery
requests, and failed to appear for the scheduled hearing. The
complainant's counsel asserted that he could not proceed with any
of the requests or orders until he had received a complete copy
of the Wage and Hour Division's final investigation report, even
after his FOIA request for the report was denied. Subsequently,
the ALJ recommended dismissing the complaint for failure to
cooperate.
The Secretary affirmed the ALJ's recommended decision and
reviewed the ALJ's authority to control the course of the
hearing, and to sanction the parties for failure to comply with
the ALJ's orders. The Secretary held that the ALJ was soundly
within his discretion in denying a request for a continuance upon
counsel's assertion of prior commitments. The ALJ may grant a
continuance and the nature of the prior commitment demonstrates
"good cause," and the decision may not be overturned
unless there is a clear showing of abuse of discretion (where the
exercise of discretion has been demonstrated to clearly prejudice
the appealing party. In Professionals Air Traffic
Controllers Organization v. Federal Labor Relation Authority
(FLRA), 685 F.2d 547 (D.C. Cir. 1982), the D.C. Circuit
Court enumerated several factors to be considered by an ALJ in
exercising this discretion:
(1) "the length of the delay requested," (2)
"the potential adverse effects of that delay," (3)
"the possible prejudice to the moving party if denied the
delay," and (4) "the importance of the testimony that
may be adduced if the delay is granted." Id.at 588.
The Secretary also held that the dismissal of the complaint
was justified on policy grounds based on the "dilatory and
contumacious" conduct of the Complainant's counsel, but
denied the Respondent's motion for the award of attorney's fees
and costs.
[Editor's note: The Secretary discusses in dicta his doubts
about the Secretary's authority directly to order sanction beyond
an order controlling the hearing and proceedings before the
Secretary. For example, the opinion mentions the lack of power
for the Secretary to issue subpoenas or to punish for contempt
and failure to comply with a subpoena. See slip. op. at
20-21.]
XVIII C 6 Failure to comply with ALJ's lawful
order
In Billings v. Reich, No. 92-3927, 1994 U.S. App.
LEXIS 13250 (6th Cir. June 1, 1994) (unpublished), the Secretary
had dismissed Complainant's complaints based on the
recommendation of the ALJ to dismiss under 29 C.F.R. §
24.5(e)(4)(i): failure to comply with a lawful order of the ALJ.
Complainant argued that the agency's dismissal was erroneous
because no hearing had been conducted.
The court found no abuse of discretion by the Secretary under the
circumstances of the case (failure to comply with the ALJ's order
that the parties file prehearing submissions despite a two-month
extension; on Secretary's direction, ALJ had given predismissal
notice and Complainant failed to show cause for his refusal to
comply with the ALJ's orders).
[Editor's note: DOL case numbers: 89-ERA-16, 25; 90-ERA-2, 8,
18]
XVIII C 6 Default judgment; failure to respond completely
to subpoena
In Hasan v. System Energy Resources, Inc., 89-ERA-
36 (ALJ July 27, 1989), Complainant served a subpoena duces tecum
seeking from Respondent all documents tendered by Respondent to
the Wage and Hour Division during the course of the preliminary
investigation. Respondent's response did not match the
information provided to Complainant in its FOIA request to DOL
for the same documents. Complainant sought a default judgment.
The ALJ denied the motion for default judgment, noting that
Complainant had insisted on no continuances, and that Respondent
had substantially complied with Complainant's document demands.
At the hearing, Respondent was precluded from entering certain
documents until it completed its subpoena return -- a sanction
the ALJ found to be adequate under the circumstances.
XVIII C 6 Failure to comply with ALJ's lawful
order
The Secretary of Labor does not err in dismissing a complaint in
accordance with 29 C.F.R. § 24.5(e)(4) as a sanction for the
complainant's refusal to comply with lawful orders of the ALJ
without first ruling on the respondent's motion for summary
judgment. Respondent contended that section 557(c) of the
Administrative Procedure Act, 5 U.S.C. § 557(c), requires
the Secretary to decide all pending motions before imposing the
sanction of dismissal. The court that section 557(c) did not
support that contention. Tennessee Valley Authority v.
Reich, No. 92-3977, 1994 U.S. App. LEXIS 13255 (6th Cir.
June 1, 1994) (unpublished) (court also held that upon issuance
of the dismissal of the complaints, the motion for summary
judgment became moot).
[Editor's note: DOL case numbers: 89-ERA-16, 25; 90-ERA-2, 8,
18]
The complaint filed by the complainant in an ERA whistleblower
action is not a "complaint" under the ALJ Rules of
Practice, which defines a complaint as "any document
initiating an adjudicatory proceeding . . . ." 29 C.F.R.
§ 18.2(d). A complaint filed with the Wage-Hour
Administration under the ETA simply initiates an investigation.
29 C.F.R. § 24.4. A hearing is initiated, after a
determination by the Wage-Hour Administrator, by filing a request
for a hearing by telegram with the Chief Administrative Law
Judge. 29 C.F.R. § 24.4(d)(2). Thus the complainant's
motion for default judgment under 29 C.F.R. § 18.5(a)
(requiring an answer to a complaint) based on the employer not
filing an "answer" to her complaint to Wage-Hour was
properly denied by the ALJ. The Secretary also noted that she
does not interpret 29 C.F.R. Part 24 as requiring an answer to a
telegram requesting a hearing. English v. General Electric
Co., 85-ERA-2 (Sec'y Feb. 13, 1992).
[Nuclear & Environmental Digest XVIII C 7]
DEFAULT JUDGMENT; FAILURE TO PROVIDE HIGHLY PROBATIVE EVIDENCE
DURING DISCOVERY
Where the ALJ issued a Order to Show Cause which clearly placed
the burden on the Complainant to demonstrate why his complaint
should not be dismissed for untimeliness, the lack of a response
by the Respondent was found by the Secretary not to be a default
on the issue under the circumstances. Garcia v. Ebasco
Services, Inc., 87-ERA-26 (Sec'y July 11, 1989).
In Mugleston v. EG&G Defense Materials, Inc., ARB No. 04-060, ALJ No. 2002-SDW-4 (ARB June 30, 2004), the ARB dismissed an appeal where the Complainant failed to file a timely brief and did not file a motion for an extension of time to file the brief until nearly three months after the brief was due. The Board, while sympathetic to counsel's situation, found that an illness in the attorney's family and a busy litigation schedule did not excuse the failure to file a timely brief or request for an extension.
XVIII C 8 Failure to prosecute
An ALJ may, on his own motion, dismiss an ERA complaint upon the
failure of the complainant to comply with a lawful order. 29
C.F.R. § 24.5(e)(4)(i)(B). In this regard, an
administrative agency's power to control its docket is similar to
that of a court. Dismissal with prejudice is warranted only
where there is a clear record of delay or contumacious conduct
and a lesser sanction would not better serve the interests of
justice. Consolidation Coal Co. v. Gooding, 703 F.2d 230,
232-33 (6th Cir. 1983).
In the instant case, the complainant had filed five complaints.
The ALJ, who had not yet made a decision on whether to
consolidate the cases, had required all prehearing submissions to
be submitted at the same time, but had provided ample time for
filing (94 days in total). The complainant, citing illness, had
refused to file anything unless the ALJ acceded to his demands
for separate filing dates.
The Secretary held that the complainant's refusal to take any
steps to comply with the ALJ's orders shows an unmistakable
pattern of contumacious conduct and is sufficient grounds for
dismissing the complaints. Consolidation Coal, 703 F.2d
at 233; Avery v. B & W Commercial Nuclear Fuel Plant,
91-ERA-8 (Sec'y Oct. 21, 1991) (dismissal warranted upon failure
to attend hearing and failure to respond to show cause order).
See Ahlberg v. Department of Health and Human Services,
804 F.2d 1242 (Fed. Cir. 1986) (failure to make any submission
after twice being told to do so is a failure to prosecute the
appeal).
Billings v. Tennessee Valley Authority, 89-ERA-16
and 25, and 90-ERA-2, 8 and 18 (Sec'y July 29, 1992).
[Nuclear and Environmental Whistleblower Digest XVIII C 8]
DISMISSAL FOR CAUSE; FAILURE TO FILE APPELLATE BRIEF
In Colley v. U.S. Dept. of Energy, ARB Nos. 04-089, 05-071, ALJ Nos. 2004-ERA-18 and 19 (ARB Nov. 15, 2005), the Complainant failed to file an opening brief and the ARB issued an order to show cause why the appeal should not be dismissed for that failure. The Complainant was subsequently granted three extensions of time. When she eventually responded, she did not address her failure to file an opening brief but merely addressed the merits of the ALJ's decision.
The Board had expressly warned the Complainant that the merits of the case would not be considered until she demonstrated good cause for the failure to file an opening brief. Even taking into consideration the Complainant's pro se status, the Board found that the circumstances required dismissal of the appeal.
[Nuclear and Environmental Whistleblower Digest XVIII C 8]
DISMISSAL FOR CAUSE; FAILURE TO SHOW GOOD CAUSE FOR FAILURE TO FILE TIMELY BRIEF BEFORE THE ARB
Failure to show good cause for failure to timely file a brief with the ARB is grounds for dismissal of the ARB appeal. Steffenhagen v. Securitas Sverige, AB, ARB No. 04-034, ALJ No. 2004-ERA-3 (ARB May 20, 2004).
[Nuclear & Environmental Whistleblower Digest XVIII C 8]
DISMISSAL FOR LACK OF PROSECUTION; FAILURE TO FILE TIMELY APPELLATE BRIEF
In Vincent v. Laborers' International Union Local 348, ARB No. 02-066, ALJ No. 2000-ERA-24 (ARB July 30, 2003), the ALJ had recommended dismissal based on a finding that Respondent was not a covered respondent under the CERCLA or SWDA (Complainant had earlier withdrawn complaints brought under the ERA and other environmental statutes). Complainant filed a petition for review by the ARB and a briefing schedule was issued. Subsequently, Complainant's attorney withdrew and the ARB extended the time for filing an appellate brief. Complainant never filed a brief. The ARB, noting that it had held that 29 C.F.R. § 24.8(a) and (b) had been construed to require the filing of an appellate brief dismissed the complaint for lack of prosecution.
[Nuclear & Environmental Whistleblower Digest XVIII C 8] DISMISSAL FOR CAUSE; FAILURE TO FILE TIMELY BRIEF
In Pickett v. Tennessee Valley Authority, ARB No 02 076, ALJ NO. 2001 CAA 18 (ARB Oct. 9, 2002) and McQuade v. Oak Ridge Operations Office, ARB No. 02-087, ALJ Nos. 1999-CAA-8 to 10 (ARB Oct. 18, 2002), the ARB dismissed appeals based on Complainant's counsel's failure to file a timely brief or request for an extension of time on attorney's fee issues. The ARB grounded the dismissals on the inherent power of a court to dismiss a case for lack of prosecution.
In McQuade, the petitioner was Complainants' former counsel, who was seeking review of the ALJ's recommended decision not to award him attorneys' fees. In McQuade, counsel missed the ARB's initial deadline for filing a brief. The ARB was not persuaded by counsel's response to an order to show cause, in which he alleged that he had a heavy trial schedule and that OALJ had failed to provide him with a requested transcript. The hearings mentioned by counsel occurred more than a month after the brief due date.
[Nuclear & Environmental Whistleblower Digest XVIII C 8]
DISMISSAL; FAILURE TO PROSECUTE; FIVE FACTOR TEST
In Reid v. Niagara Mohawk Power Corp.,
ARB No. 00 082, ALJ No. 2000 ERA 23 (ARB Aug. 30, 2002), Complainant wrote to the Chief
ALJ in 2000 requesting a report on the status of a case he had purportedly filed seven years
earlier. Although the OALJ had no record of a hearing request, Complainant produced a fax
transmission confirmation sheet bearing the number of the OALJ administrative offices rather
than the Docket section. The Associate Chief ALJ accepted the fax confirmation sheet as
adequate proof of filing and therefore accepted the case as docketed for hearing. The
Respondent thereafter filed a motion with the assigned presiding ALJ to dismiss for want of
prosecution. The ALJ granted the motion. In the hearing before the ALJ on the motion to
dismiss, Complainant explained that although he had filed another hearing request with DOL
OALJ near to the time of instant hearing request, which case had proceeded to hearing and
decision in a timely fashion, he did not view the seven year delay on the instant case as
unusual because of his experience with other administrative forums.
On review, the ARB adopted the Second Circuit's test for determining when it is appropriate to
dismiss a case for want of prosecution. The ARB quoted LeSane v. Hall's Security Analyst,
Inc., 239 F.3d 206, 209 (2d Cir. 2001), as to the factors to be considered, noting that none
of the factors are individually dispositive:
[1] the duration of the plaintiff's failures, [2] whether the plaintiff had received
notice that further delays would result in dismissal, [3] whether the defendant
is likely to be prejudiced by further delay, [4] whether the district judge has
take[n] care to strik[e] the balance between alleviating court calendar
congestion and protecting a party's right to due process and a fair chance to be
heard . . . and [5] whether the judge has adequately assessed the efficacy of
lesser sanctions.
Applying this test, the ARB determined, first, that it was significant that seven years had passed
from the time the Complainant filed his hearing request until he wrote a letter to the Chief ALJ
inquiring into the status of the case but also observed that it had not been the Complainant's
duty to take any specific action. Rather, it had been incumbent on OALJ to schedule the
hearing and notify the parties of the hearing date. In regard to the second factor, the ARB
found that the Complainant had not received any specific notice that inaction would result in
a dismissal of the complaint. In regard to the third factor, the ARB noted the Respondent's
assertion that some witnesses were beyond the reach of subpoenas, but found that the
Respondent had "not identified any specific prejudice to its case should the case
proceed." In regard to the fourth factor, the ARB found that the Complainant's case did
not add to court calendar congestion since it was not on the calendar, and observed that
"[t]his is not a case in which a party has requested serial continuances in an effort to
avoid litigating his case, and in the process has wasted the court's time and resources."
The ARB did not consider factor five because it held that the Complainant had not been derelict
in any duty. In conclusion, the ARB held that "given Reid's pro se status, the fact that
there is no evidence in the record that Reid's failure to proceed was an intentional ploy to avoid
or prolong litigation, and the fact that Reid was given no warning, we reject the ALJ's
recommendation that this case be dismissed for failure to diligently pursue the case."
[Nuclear & Environmental Digest XVIII C 8]
DISMISSAL; FAILURE TO PROSECUTE
In Williams v. Lockheed Martin Energy Systems, Inc., ARB No. 98-059, ALJ No. 1995-CAA-10 (ARB Jan. 31, 2001), the ARB affirmed the ALJ's dismissal where Complainant failed to respond to a motion for summary decision with documents or affidavits that countered the movant's documentation and affidavit. One member of the Board wrote a concurrence, however, to note that the ALJ had given Complainant extraordinary latitude in responding to the motion for summary decision, providing Complainant with over 18 months to answer the motion, and even "one last chance." Although the ARB member commended the ALJ's patience, he observed that such repeated failures to file pleadings could be viewed as a failure to prosecute, and stated that the ALJ would have been justified in dismissing the case on that ground.
[Nuclear & Environmental Digest XVIII C 8]
FAILURE TO PROSECUTE
In Reid v. Niagara Mohawk Power Corp., ARB No. 00-082, ALJ No.
2000-ERA-23 (ALJ August 30, 2000), the OALJ docket computer did not show a record of
Complainant's case. Subseqently, Complainant presented evidence to the Associate Chief Judge
that he had filed a request for hearing by fax approximately seven years earlier. On this basis, the
Associate Chief Judge directed that the case be docketed, and assigned the case to a judge for
hearing. Respondent then filed a motion to dismiss based on Complainant's failure to
use a telegram as the regulations in effect at the time required, and based on Complainant's
failure to prosecute the claim for seven years. The ALJ conducted a hearing on the motion, and
subsequently issued a recommended decision finding that the timely filing by fax was in
substantial compliance with the regulations and therefore not a sufficient ground for dismissal of
the complaint, but that Complainant's permitting the case to lay dormant for nearly seven years
had materially prejudiced Respondent's ability to defend the case. For instance, witnesses who
had left Respondent's employ could not be compelled to attend a hearing given the lack of
authority by an ALJ to issue a subpoena in an ERA whistleblower case. The ALJ was
unpersuaded by Complainant's vague testimony that he made "on and off" attempts
over the years to inquire into the status of the case, or the argument that depression had rendered
him unable to inquire diligently into the status of his case. On this basis, the ALJ recommended
a dismissal with prejudice.
[Nuclear & Environmental Digest XVIII C 8]
DISMISSAL FOR FAILURE TO PROSECUTE
In Mastrianna v. Northeast Utilities
Corp., ARB No. 99-012, ALJ No. 1998-ERA-33 (ARB Sept. 13, 2000), the ALJ
recommended dismissal for failure to file a timely complaint under the ERA. Complainant
appealed to the ARB, but after several extensions of time and a missed teleconference by
Complainant's attorney, failed to file a brief. The ARB, analogizing to the inherent power of the
courts to dismiss a case for lack of prosecution, found that it must manage its docket in an effort
to achieve the orderly and expeditious disposition of cases. Under the circumstances, it
dismissed the appeal based on failure to prosecute the petition for review of the ALJ's
recommended decision. The ARB noted that dismissal of the petition for review rendered the
ALJ's decision the final order of the Secretary pursuant to 29 C.F.R. § 24.7(d).
[Nuclear and Environmental Whistleblower Digest XVIII C 8]
DISMISSAL; FAILURE TO PROSECUTE
In Solnicka v. Washington Public Power
Supply System, ARB No. 00-009, ALJ No. 1999-ERA-19 (ARB Apr. 25, 2000),
the ARB denied Complainant's fifth request for an extension of time to file his appellate brief,
and dismissed the appeal for failure to prosecute, where Complainant had been warned after the
fourth extension that further extensions would be granted only for exceptional circumstances, the
fifth request for an extension had been filed on the day before the brief was due, and the fifth
request for an extension was based on a request to delay briefing until the issuance of a report by
Respondent concerning the safety of cranes an issue not relevant to the basis for Complainant's
appeal. The ARB wrote:
Courts possess the "inherent power" to
dismiss a case for lack of prosecution. Link v. Wabash Railroad Co., 370
U.S. 626, 630 (1962). This power is "governed not by rule or statute but by
the control necessarily vested in courts to manage their own affairs so as to
achieve the orderly and expeditious disposition of cases." Id. at
630-631. Like the courts, this Board must necessarily manage its docket in an
effort to "achieve the orderly and expeditious disposition of cases."
Given Solnicka's failure to submit an initial brief as ordered, we find that Solnicka
has failed to prosecute his case.
XVIII c 8 Failure to prosecute based on mental
incompetence; limits on
Department's need to be accommodating
In Guity v. Tennessee Valley Authority, 90-ERA-10
(Sec'y May 3, 1995), the
complaint had been dismissed without prejudice based on the
Complainant's failure to prosecute as a
result of mental incompetence. The Complainant had failed to
take any action for three years. The
dismissal was with leave to file a motion to reopen within 30
days of the treating psychologist's
declaration that the Complainant was competent to litigate the
case, with a one year limitation on the
opportunity to file such a motion. Several additional conditions
were required to be included in the
motion.
Just prior to the end of the one year period, the Complainant did
file such a motion with statements of
a treating psychologist and a psychiatrist. The motion and
underlying affidavits requested that the
matter be reopened and the Complainant be permitted to proceed at
a cautious or slow pace. The
Secretary accepted the affidavits as demonstrating that the
Complainant is competent to proceed.
The Secretary, however, noted that more than five years had
passed since the Complainant filed his
complaint, and that the Department had been very accommodating in
awaiting Complainant's
prosecution of the complaint. Further delay could not be
permitted, however, because "[t]he
rights of a respondent to have claims against it resolved in a
timely fashion must also be
considered." Thus, on remand, the scheduling of the case
was directed to be "like any
other ERA case." The Complainant was not to "receive
any further significant
postpostments or enlargements of time based upon his emotional or
psychological state." If the
Complainant became unable to prosecute because of his emotional
or psychological state, the
Secretary directed the ALJ who is assigned on remand to issue a
recommended decision and order
dismissing the complaint with prejudice. Citing Mack v.
Malone and Hyde, Inc., 1994 U.S. App.
LEXIS 8131, No. 93-5814 (6th Cir. Apr. 15, 1994) (affirming
District Court's dismissal for failure to
prosecute Title VII case after seven years, notwithstanding
plaintiff's mental illness).
XVIII C 8 Dismissal for failure to prosecute
In Guity v. Tennessee Valley Authority, 90-ERA-10
(Sec'y Jan. 24, 1994), the Secretary dismissed a case without
prejudice and with leave to Complainant to file a motion to
reopen within 30 days of Complainant's treating physician or
psychologist's declaration of Complainant's competence to
litigate the case. The motion is to demonstrate by a
preponderance of the medical evidence that Complainant had been
mentally incompetent throughout the proceeding, that his attorney
was unable to prosecute this case without Complainant's
assistance which was precluded by his incompetence, and that such
motion is filed within 30 days of his achieving competence. The
Secretary permitted one year for the filing of such a motion, and
ordered that if no such motion is filed timely, the dismissal
shall be with prejudice. The motion would be filed with the OAA
on behalf of the Secretary.
This Order is substantially in conformance with the
recommendation of the Deputy Chief ALJ, who had recommended
dismissal for failure to prosecute after issuing a number of
orders attempting to get the case to hearing after a delay of
several years based on Complainant's incompetence.
The Secretary noted that the ALJ assumed that the Secretary has
the authority to reopen final decisions in ERA cases such as
this. He also noted that he had recently ruled in Bartlik v.
Tennessee Valley Authority, 88-ERA-15 (Sec'y July 16, 1993),
that there is considerable doubt (but did not resolve) whether
the Secretary has the authority to reconsider a final decision.
The Secretary distinguished Bartlik on the ground that
here there is no issue of a request for reopening on a ground of
material error. Rather, the dismissal without prejudice with
leave to seek reopening is a means to ameliorate the admittedly
harsh sanction of dismissal with prejudice for failure to
prosecute.
The Secretary held that an administrative agency's power to
control its docket is similar to that of a court. Billings v.
Tennessee Valley Authority, 89-ERA-16 (Sec'y July 29, 1992).
It is within the power of a court to dismiss for failure to
prosecute where the plaintiff's mental incompetence has lead to
stagnation in the case. See Mavy-Amenberg v. Marsh, 1991
U.S. App. LEXIS 20919 (9th Cir. 1991) (reported as table case at
942 F.2d 790). The Department of Labor has the inherent
authority not to allow a case to remain open in perpetuity.
The Secretary also held that although it is not necessary to show
prejudice to the defendant as a basis for dismissal for failure
to prosecute, he agreed with the ALJ that the passage of time
could hamper TVA's ability to prepare a defense.
The Secretary noted that a dismissal for failure to prosecute is
with prejudice and thus bars a complainant from reinstituting the
case. Ball v. City of Chicago, 2 F.3d 752, 753 (7th Cir.
1993). It is considered a harsh sanction, Id. at 754, and
a court should dismiss for failure to prosecute only if it has
determined that a less severe remedy would not be effective.
Id. at 758, and cases there cited. The Secretary agreed
with the ALJ that the circumstances in the instant case made it
unlikely that lesser sanctions would be effective.
XVIII C 8 Failure to prosecute
A dismissal for failure to prosecute in a whistleblower
proceeding should be premised on the regulation at 29 C.F.R.
§ 24.5(e)(4)(i)(B), rather than Fed. R. Civ. P. 41(b).
See Walters v. Karmichael Tank Service, 90-STA-12 (Dep.
Sec'y Jan. 22, 1991), slip op. at 3 (dismissing complaint under
29 C.F.R. § 18.6(d) where ALJ recommended dismissal under
Rule 41). Gore v. CDI Corporation, 91-ERA-14
(Sec'y July 8, 1992).
XVIII C 8 Failure to prosecute; mental incapacity
In Guity v. Tennessee Valley Authority, 90-ERA-10
(ALJ May 19, 1993) (prehearing order), the ALJ ordered that the
Complainant provide a report from his physician within 60 days
stating that the Complainant is competent to participate in the
prosecution of his whistleblower complaint. In the event that
such a report could not be submitted, the ALJ stated that he
would recommend to the Secretary that this matter be dismissed
based on failure to prosecute.
In Guity, the complaint had been filed on June 8,
1989, a hearing requested on December 11, 1989, and the matter
continued since January 5, 1990 based on the Complainant's mental
incapacity. A concurrent United States District Court action had
been pending for approximately the same period of time.
On February 17, 1993, the Complainant was ordered to show cause
why the matter should not be scheduled for hearing. The
Respondent provided a copy of a District Court order in which
that cause was administratively terminated subject to reopening
if the Complainant became mentally capable. The Complainant
responded generally asserting through counsel that he was
progressing toward competence. No evidence in support of that
assertion was submitted.
The ALJ essentially concluded that the Complainant had failed,
and continued to fail, to prosecute his case, and that matter
should either proceed to hearing or be dismissed.
XVIII C 8 Failure to prosecute
In Guity v. Tennessee Valley Authority, 90-ERA-10
(ALJ Aug. 19, 1993), the ALJ recommended dismissal of an ERA
whistleblower complaint based on failure to prosecute even though
the reason for the failure was Complainant's mental incapacity.
The complaint had originally been docketed with OALJ on December
12, 1989. The ALJ assigned to the case continued it twice, the
second continuance dated January 25, 1991, was based on
Complainant's mental condition and an indefinite stay placed on a
concurrent United States District Court action. The continuance
was to last until 90 days following completion of the District
Court action. Status reports were filed in November 1991, and
one further communication was made in December 1991, and the case
was placed on the suspense Docket.
On February 13, 1993, the Deputy Chief Judge issued an order to
show cause why the stay should not be lifted and the matter
scheduled for hearing. On April 13, 1993, a second order to show
cause was issued based on Complainant's apparent failure to
respond to the first order to show cause. Complainant submitted
documentation, however, showing that he had timely responded
(albeit with an unauthorized facsimile), and grounds for
dismissal such as failure to comply with a lawful order and
abandonment were found not to be present. The Deputy Chief
Judge, however, found that Complainant had failed to establish
grounds for not going forward with the case, and afforded
Complainant 60 days to submit a physician's report of competency,
stating that in the event such a report could not be submitted,
he would recommend to the Secretary that the matter be dismissed
for failure to prosecute. In his response to this order,
Complainant supplied a medical report indicating that Complainant
was not yet competent, but indicating that he would eventually be
able to complete his case.
The Deputy Chief Judge found that it was within OALJ's province
to regulate its Docket, and that a dismissal for failure to
prosecute could be initiated by the trial judge. He found that
the time limitation expressed in the original continuance by the
ALJ had terminated because the District Court had
"administratively terminated" the action on September
17, 1992, although leaving open the possibility of a reopening.
The Deputy Chief Judge found that the medical report was merely a
description of why the case could not go forward rather than a
positive action in prosecution of the case, and noted that five
additional months had already passed since the first order to
show cause with no indication that the case would soon go
forward.
Balancing these and other factors, the Deputy Chief Judge
recommended that, pursuant to Fed. R. Civ. P. 41(b), the
Secretary dismiss the complaint without prejudice and with leave
to file a motion to reopen, together with some other limitations.
XVIII C 8 Dismissal for failure to prosecute
In Guity v. Tennessee Valley Authority, 90-ERA-10
(Sec'y Jan. 24, 1994), the Secretary dismissed a case without
prejudice and with leave to Complainant to file a motion to
reopen within 30 days of Complainant's treating physician or
psychologist's declaration of Complainant's competence to
litigate the case. The motion is to demonstrate by a
preponderance of the medical evidence that Complainant had been
mentally incompetent throughout the proceeding, that his attorney
was unable to prosecute this case without Complainant's
assistance which was precluded by his incompetence, and that such
motion is filed within 30 days of his achieving competence. The
Secretary permitted one year for the filing of such a motion, and
ordered that if no such motion is filed timely, the dismissal
shall be with prejudice. The motion would be filed with the OAA
on behalf of the Secretary.
This Order is substantially in conformance with the
recommendation of the Deputy Chief ALJ, who had recommended
dismissal for failure to prosecute after issuing a number of
orders attempting to get the case to hearing after a delay of
several years based on Complainant's incompetence.
The Secretary noted that the ALJ assumed that the Secretary has
the authority to reopen final decisions in ERA cases such as
this. He also noted that he had recently ruled in Bartlik v.
Tennessee Valley Authority, 88-ERA-15 (Sec'y July 16, 1993),
that there is considerable doubt (but did not resolve) whether
the Secretary has the authority to reconsider a final decision.
The Secretary distinguished Bartlik on the ground that
here there is no issue of a request for reopening on a ground of
material error. Rather, the dismissal without prejudice with
leave to seek reopening is a means to ameliorate the admittedly
harsh sanction of dismissal with prejudice for failure to
prosecute.
The Secretary held that an administrative agency's power to
control its docket is similar to that of a court. Billings v.
Tennessee Valley Authority, 89-ERA-16 (Sec'y July 29, 1992).
It is within the power of a court to dismiss for failure to
prosecute where the plaintiff's mental incompetence has lead to
stagnation in the case. See Mavy-Amenberg v. Marsh, 1991
U.S. App. LEXIS 20919 (9th Cir. 1991) (reported as table case at
942 F.2d 790). The Department of Labor has the inherent
authority not to allow a case to remain open in perpetuity.
The Secretary also held that although it is not necessary to show
prejudice to the defendant as a basis for dismissal for failure
to prosecute, he agreed with the ALJ that the passage of time
could hamper TVA's ability to prepare a defense.
The Secretary noted that a dismissal for failure to prosecute is
with prejudice and thus bars a complainant from reinstituting the
case. Ball v. City of Chicago, 2 F.3d 752, 753 (7th Cir.
1993). It is considered a harsh sanction, Id. at 754, and
a court should dismiss for failure to prosecute only if it has
determined that a less severe remedy would not be effective.
Id. at 758, and cases there cited. The Secretary agreed
with the ALJ that the circumstances in the instant case made it
unlikely that lesser sanctions would be effective.
It is error to dismiss a case for lack of jurisdiction under the
authority of 29 C.F.R. § 24.5(e)(4). That section applies
only to involuntary dismissals resulting from specified actions
of a complainant or complainant's representative which
unnecessarily or unreasonably impede the conduct of the
litigation. Wensil v. B.F. Shaw Co., 86-ERA-15,
87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29, 1990), aff'd sub
nom. on another issue, Adams v. Dole, 927 F.2d 771 (4th Cir.
1991), cert. denied, 116 L. Ed. 2d 90 (1991).
[Nuclear and Environmental Whistleblower Digest XVIII C 9]
DISMISSAL OF APPEAL; MOOTNESS; JURISDICTION
In Edmonds v. Tennessee Valley Authority, ARB No. 05-002, ALJ No. 2004-CAA-15 (ARB July 22, 2005), the Complainant requested the ARB to review a letter from the Chief ALJ responding to a FOIA request filed by the Complainant's counsel. In the letter, the Chief ALJ had responded to the FOIA request, but informed the Complainant that his counsel would not be permitted to file future FOIA requests on his behalf because of an order issued by the Associate Chief ALJ denying that attorney the right to represent parties before OALJ. The ARB issued an order directing the Complainant to demonstrate why his request was not moot given the Board's affirmance of the Associate Chief ALJ's order. (The Board also expressed doubt that it had the authority to review the Chief ALJ's letter at all). The Complainant did not respond and the ARB consequently dismissed the appeal.
In Newport v. Florida Power & Light Co. , ARB No. 06-110, ALJ No. 2005-ERA-24 (ARB Feb. 29, 2008), during a telephone conference to hear the Respondent�s motion for sanctions, the ALJ learned that the Complainant had threatened witnesses and counsel. The ALJ ordered the Complainant not to threaten anyone again, and the Complainant agreed to refrain from doing so. Later a hearing was convened, and during a recess the Complainant gestured toward one of the Respondent�s witnesses by drawing his finger across his own throat as if slashing the witnesses� throat. Following taking testimony about the incident, and a renewed motion for sanctions by the Respondent, the ALJ found that the gesture constituted a threat and a violation of his earlier order not to make threats. The ALJ therefore denied the complaint. The ARB affirmed on appeal.
[Nuclear and Environmental Whistleblower XVIII C 10]
DISMISSAL FOR CAUSE; COUNSEL'S DELIBERATE AND CONTEMPTUOUS REFUSAL TO COMPLY WITH LAWFUL ORDER OF THE ALJ
An ALJ may recommend dismissal of an ERA whisteblower complaint based upon a party's failure to comply with a lawful order. 29 C.F.R. § 24.6(e)(4)(i). Dismissal of a complaint for failure to comply with the ALJ's lawful orders, however, is a very severe penalty to be assessed in only the most extreme cases. In Puckett v. Tennessee Valley Authority, ARB No. 03-024, ALJ No. 2002-ERA-15 (ARB June 25, 2004), the ARB affirmed the ALJ's recommended dismissal of the complaint where the record supported the ALJ's finding that "Counsel's failure to comply with the Scheduling Order was a deliberate unjustified delaying tactic and a deliberate expression of contempt for the Court...." USDOL/OALJ Reporter at 3 (citations omitted). The ARB also found that the record supported the ALJ's finding that "Counsel has exhibited a drawn out history of deliberately proceeding in a dilatory manner and his continued disregard of the Court's Orders indicates that with anything less than dismissal, counsel will never understand the severity of potential consequences for not complying with the Court's Orders...." USDOL/OALJ Reporter at 3-4 (citations omitted).
[Nuclear and Environmental Whistleblower Digest XVIII C 10]
ATTORNEY MISCONDUCT AS GROUNDS FOR DISMISSAL OF COMPLAINT; COMPLAINANT NOT PERMITTED TO DISASSOCIATE WITH MISCONDUCT WHERE HE WAS AWARE OF IT AND APPEARED TO RATIFY IT
In Puckett v. Tennessee Valley Authority, ARB No. 03-024, ALJ No. 2002-ERA-15 (ARB June 25, 2004), the ARB affirmed the ALJ's dismissal of the complaint based on the Complainant's counsel's deliberate and contemptuous refusal to comply with a lawful order. The ARB rejected the Complainant's request to permit him to obtain a new attorney and proceed with the case where the Complainant had been aware of his counsel's contumacious refusal to comply with the ALJ's scheduling order, but nevertheless, he continued to ratify his counsel's actions even after the case had been appealed to the ARB.
XVIII C 10 Denial of relief where
complainant knowingly presents
misleading evidence
In Willy v. The Coastal Corp., 85-CAA-1 (ALJ Nov.
29, 1988), the Complainant lied in depositions and in testimony
at the hearing in regard to his post-discharge employment,
indicating that he had only part-time work, when in fact he was
employed full-time at a salary exceeding the amount he made when
discharged by the Respondent. The ALJ cited Iowa Beef
Packers, Inc. v. NLRB, 331 F.2d 176, 181 (8th Cir. 1964) for
the proposition that
Where a party has knowingly presented misleading
evidence, forfeiture of that party's remedy is required to
further the policy of the Act under which relief is
sought.
He cited Mas v. Coca Cola Co., 163 F.2d 505 (4th Cir.
1947) for the proposition that
Relief under such circumstances is to be withheld, not
for the protection of the other party, but rather to
safeguard the integrity of the adjudicative process.
Accordingly, the ALJ concluded that the Complainant was entitled
to no relief.
XVIII.C.10. Failure to make restitution
In Macktal v. Brown & Root, 86-ERA-23 (ALJ July
6, 1994), the ALJ recommended dismissal of Complainant's
complaint on the ground that Complainant had failed to make
restitution for monies paid pursuant to a settlement agreement
that had latter been rejected by the Secretary of Labor.
