A review of the pending docket by this Office in early 1993
revealed that no action or communication in this matter had been
made by either Complainant or Respondent since December 1991.
Accordingly, on February 17, 1993, the undersigned issued a
notice of reassignment, and ordered the parties to show cause why
the stay should not be lifted and the matter scheduled for
hearing in view of the time that had passed since the continuance
had been granted by Judge Jansen.
The period for response to the first order to show cause
having passed, and it appearing that the Complainant had not
responded, on April 13, 1993, the undersigned issued a second
Order to Show Cause, vacating the stay of the hearing, and
directing Complainant to show cause why the complaint should not
be dismissed based on failure to comply with a lawful order,
abandonment and failure to prosecute. In an Order dated May 19,
1993, however, it was found that the Complainant apparently had
timely responded (albeit with an unauthorized facsimile
transmission), and that the grounds for dismissal of failure to
comply with a lawful order and abandonment were not present. It
was also found, however, that Complainant had not established a
record, as directed in the first Order to Show Cause, why the
case could not go forward. Hence, Complainant's request to keep
this matter in suspense on the pending Docket was denied. It was
concluded that "Complainant has failed, and continues to fail, to
prosecute his case."
The May 19, 1993 Order afforded the Complainant sixty days
to submit a report from his physician stating that the
Complainant is competent to participate in the prosecution of his
whistleblower complaint. In the event that the Complainant could
not submit such a report by that date, the Order indicated that a
Recommended Order would be issued recommending to the Secretary
that this matter be dismissed based on failure to prosecute.
This Office received a response from Complainant on July
16, 1993. Counsel for Complainant maintains that Complainant is
mentally incapable of proceeding and requests that the case
remain open. Included in the response is an affidavit signed by
William Berez, Ph.D., the Complainant's treating psychologist
since 1987. Dr. Berez states that, in his opinion, it is in the
Complainant's best interest to delay the hearing in this matter,
that the Complainant's psychological health will improve once his
litigation with the Respondent is concluded. He also indicated
that the Complainant is not presently able to continue pursuit of
the litigation without increasing his psychological problems, but
that the Complainant "will eventually be able to conclude his
case" and that the Complainant "is striving with great effort to
improve his psychological condition so that he may complete this
litigation.
Discussion
Although the May 19, 1993 Order indicated that a
Recommended Order of Dismissal would result if Complainant was
unable to produce medical documentation of an ability to proceed,
Complainant has renewed his request that the case remain open and
the foregoing discussion considers de novo the question of
whether a dismissal for failure to prosecute is appropriate.
The original motions for continuance in this matter were
joint; however, it is within the province of a court to regulate
its docket. See Billings v. Tennessee Valley Authority , 89-ERA-
16 and 25, 90-ERA-2, 8 and 18 (Sec'y July 29, 1992) (an agency's
power to control it docket is similar to that of a court). In
the District Courts, a dismissal for failure to prosecute may be
initiated by the trial judge, who has inherent power in that
regard. This power is recognized to prevent undue delays and to
avoid congestion in the calendars of courts. Link v. Wabash
Railroad Co. , 370 U.S. 626 (1962); Vest v. The City of New York ,
130 F.R.D. 522 (S.D. N.Y. 1990). Accordingly, the fact that the
issue of failure to prosecute was raised by this Office rather
than by Respondent is not a cause for concern.
Moreover, Judge Jansen's stay was limited in duration to
completion of Cause No. 3-87-843 in the United States District
Court. That Cause was administratively terminated on September
17, 1992, albeit the possibility was left open for Complainant to
file for reopening within thirty days of his physician declaring
Complainant's competence to prosecute his case. This action was
taken under the apparent authority of Rule 41(b) of the Federal
Rules of Civil Procedure, which permits a district court judge to
dismiss for failure to prosecute, and which permits the order to
specify that the dismissal is without prejudice. Although the
District Court granted permission to file a motion to reopen,
that fact is not an indicator that the District Action is still
active. It is merely an indicator that the case might be
reopened at some uncertain future date, with no guarantee that
such a motion to reopen would be granted.
The administrative record now includes Dr. Berez's
affidavit. The District Court in cause 3-87-0843 characterized
status reports on Complainant's continuing psychological problems
as merely a description of why there has been no activity in a
case, rather than positive action in the prosecution of the case.
That observation is equally cogent in regard to Dr. Berez's
affidavit.
The first order to show cause concerning the problem of
inactivity in the case was issued in February of this year. Five
months have passed with still no indication that the case
reasonably can be expected to go forward anytime soon. Dr.
Berez's assertions that Complainant "will eventually be able to
conclude his case' and that Complainant "is striving with great
effort to improve his psychological condition so that he may
complete this litigation' do not provide any reasonably
foreseeable date when the hearing might be held.
Although Complainant's mental condition is an ameliorating
factor, federal case law indicates that deliberate intent to
delay is not required to find grounds for a failure to prosecute.
West v. The City of New York , 130 F.R.D. 522 (S.D. N.Y. 1990)
(and cases cited therein). Moreover, weighed against this
ameliorating factor are the following factors: the case has been
pending before this Office, essentially without any action (other
than that precipitated by the undersigned orders) since December
1991, Complainant has been on notice since February 1993 -- and
under the direction of two orders to show cause and one order
directing other action -- that he must justify a continued delay
of the hearing, Complainant has not provided any assurances of
prosecution of this case in the near future, Respondent's ability
to prepare a defense may be hampered by continuing delay, the ERA
whistleblower provision was meant to be an expedited proceeding,
and this Agency has a responsibility to manage its docket so that
matters do not drag on indefinitely.3
Lesser sanctions are not
likely to be effective given that Complainant appears not to be
able to participate at all in the case, and it is uncertain when
he will be so able to participate.
Counsel's optimistic assessments that Complainant will be
able to go forward with the case are Dot believable considering
that this case has been pending before this Office since December
1989 and no action progressing the matter toward hearing has
occurred since prior to Judge Jansen's first grant of a
continuance in September of 1990.
In view of the circumstances, it is recommended that the
Secretary, pursuant to Fed. R. Civ. P. 41(b) (as made applicable
by 29 C.F.R. § 18.1(a)), dismiss the complaint without prejudice
and with leave to file a motion to reopen within thirty days of
Complainant's treating psychologist's declaration of competence
to litigate the case. It is also recommended that the leave to
file a motion to reopen be limited to one year from the date of
the Secretary's order and be conditioned on the understanding
that a granting of the motion is not be a foregone conclusion but
must be supported by argument and any appropriate evidence, and a
showing that the psychologist's declaration of competence was not
unduly delayed after the date of recovery. In addition, it is
recommended that the Secretary hold that any ouch motion be filed
with the Secretary (via the Office of Administrative Appeals),
which then could determine whether any finding of fact by an
administrative law judge is necessary or whether he could rule on
the motion directly. Finally, in the interest of judicial
finality, it is recommended that the Secretary hold that in the
event a motion to reopen is not filed within one year of the date
of the Secretary's order, the Secretary's order will
automatically become a final order of dismissal with prejudice.
RECOMMENDED ORDER
It is recommended that the Secretary DISMISS the
Complainant for lack of prosecution, subject to the conditions
stated above.
At Washington, D.C. Entered:
by:
John
M. Vittone
JMV/trs
[ENDNOTES]
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