Date: March 3, 1988
Case No. 88-ERA-0008

In the matter of

W. ALLEN YOUNG
    Claimant

    v.

CBI SERVICES, INC.
    Employer

    This is an action under the "whistleblower" provisions of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851 (1982) alleging discrimination as defined and prohibited by that statute. After complaint, on November 25, 1987 the Wage and Hour Division of the U. S. Department of Labor issued a finding adverse to the interests of the respondent. CBI Services, Inc., the respondent, promptly filed a request for hearing before an administrative law judge.

    After assignment to me, the matter was scheduled for hearing in Camden, N.J. on January 25, 1988. Although all parties were notified, complainant failed to appear. Respondent's counsel moved to dismiss the complaint, with prejudice, for Claimant's failure to appear. A Show Cause order was issued by me under the provision of 20 C.F.R. 24.5(e)(4)(B)(ii) requiring Claimant to show cause within 30 days why his complaint should not be dismissed. Shortly thereafter, a letter appearance, mailed January 21, 1985, was received, noting the appearance of counsel and requesting a postponement of hearing.

    The letter from Claimant's counsel indicated that he thought the hearing was scheduled for January 28, and it noted the possibility of a motion for consolidation of this case with others pending at some unspecified future time. Counsel for Claimant was then notified by me that his untimely appearance letter would not constitute "good cause" within the contemplation of the Show Cause Order.

    Counsel for the Claimant filed a response to the Show Cause Order on February 19, 1988. Most of that pleading is devoted to a recitation of the facts and status of three other pending "whistleblower" cases under the same act against Philadelphia Electric Company and other sub-contractors. As concerns this case, though, and the failure to appear, counsel says only that neither he nor complainant "attended the hearing because of an error as to the date of the hearing. *** Either complainant gave his counsel the incorrect date, or counsel misunderstood the date, and that error resulted in the failure of either complainant or counsel to appear at the hearing."

    In his initial complaint dated October 27, 1987, Mr. Young states "Tis my sixth trip down this road for having blown the whistle. *** Since this is my sixth trip down this path at Peach Bottom I'm not going to hire a guide until I need one ***."¹ Although Mr. Young appeared pro se at this stage of the proceeding, it is clear that he was thoroughly experienced in dealing with this statute and the applicable regulations by virtue of his past wanderings on this path. Perhaps he would have been well served to hire a guide a little earlier.

    Here, Claimant has failed to demonstrate good cause for not dismissing this case. Nor has he shown a compelling reason to grant a retroactive postponement. At the hearing in Camden, N.J., counsel from Oak Brook, Ill. appeared for respondent, along with three other representatives of the company. (TR-9)² No advance request for postponement was received, nor did the Claimant contact my office by phone. The equities are all on the side of the respondent.

    The respondent has moved for dismissal, with prejudice. In Durham v. Florida East Coast Ry. Co., 358 F. 2d 366,368 (9th Cir., 1967) the court said dismissal with prejudice "is the most severe sanction that a court may apply and its use must be tempered by a careful exercise of judicial discretion." See, also Martin-Trigona v. Morris, 627 F 2d 680, 682 (3rd Cir. 1980).

¹Less than through research discloses the existence of at least six prior or pending Energy Reorganization Act proceedings involving Mr. Young.:

W. Allan Young v. E. H. Hinds and Philadelphia Electric Company
Case No. 88-ERA-1
Now pending before Judge F. Marcellino

W. Allan Young v. Philadelphia Electric Company
Case No. 87-ERA-36
Now pending before Judge F. Marcellino

W. Allan Young v. Philadelphia Electric Company
Case No. 87-ERA-11
Now pending before Judge F. Marcellino

W. Allan Young v. W. E. H. Hinds
Case No. 86-ERA-11 July 6, 1987
Remand to Wage & Hour Administration

W. Allan Young v. The Great Atlantic & Pacific Welding & Construction Co.
Case No. 84-ERA-35 February 21, 1985
Dismissed

W. A. Young v. Frank W. Hale, Inc.
83-ERA-11 January 18, 1985
Settlement

²Refers to page of Transcript of January 25, 1988 hearing.