DATE:   March 4, 1994
CASE NOS. 87-ERA-6
          87-ERA-40


IN THE MATTER OF

JOHN C. REX,

          COMPLAINANT,

     v.

EBASCO SERVICES, INCORPORATED,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     The Administrative Law Judge (ALJ) in this case arising
under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §
5851 (1988), submitted a Recommended Decision and Order (R. D.
and O.) dismissing the complaint with prejudice, and ordering
Complainant and his attorneys to pay the attorneys fees and costs
incurred by Respondent in defending what the ALJ characterized as
"this groundless action."  R. D. and O. at 12.  The parties
submitted briefs on the R.D. and O. and, in addition, the
Administrator of the Wage and Hour Division submitted an
amicus curiae brief on the question of whether an
ALJ has the authority under the ERA to impose monetary sanctions
on complainants and their attorneys.
                             BACKGROUND
     Complainant filed a complaint against Respondent under the
ERA on October 22, 1986, alleging he had been discriminatorily
terminated.  While the question of the timeliness of that
complaint was being adjudicated before an ALJ and the Secretary,
Complainant apparently was reinstated by Respondent at another
facility and then laid off on March 3, 1987.  Complainant filed 
[PAGE 2]
another complaint under the ERA, the one which gave rise to this
case, alleging that the lay off was motivated by retaliation for
his filing the first Complaint.  The parties engaged in discovery
during 1987 and 1988 and, after the hearing had been postponed
and the case reassigned to the ALJ who submitted the R. D. and
O., a hearing was convened on Apr. 5, 1989.
     At the hearing, Complainant's counsel sought and was granted
leave to file a Second Amended Complaint.  Complainant argued
that the facts alleged in the Second Amended Complainant
demonstrated that Complainant was not entitled to relief under
the ERA, that the Department of Labor therefore was deprived of
jurisdiction, and the matter should be dismissed.  The ALJ denied
this motion and ordered Complainant to proceed to present his
case.  Complainants counsel did not offer any evidence or
witnesses and conceded that they could not prove a violation of
the ERA.
     Respondent's counsel moved for judgment in Respondent's
favor, which was granted by the ALJ in the R. D. and O.  The ALJ
also granted Respondent leave to file a motion for attorney's
fees and costs, and Respondent filed that motion on April 14,
1989.  Complainant filed a response to the motion and requested a
hearing on the issue of the imposition of costs and attorney's
fees.  The ALJ denied Complainant's motion for a hearing on the
grounds that "counsel's response adequately addressed
Respondent's motion [for costs and attorney's fees] and . . . 
a hearing on the issue is not necessary, but would merely cause
additional delay and expense."  R.D. and O. at 6.
     The ALJ recognized that the Department of Labor Rules of
Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges, 29 C.F.R. Part 18 (1993) 
(Part 18 or ALJ Rules of Practice) provide for imposition of the
sanctions of excluding a party or his representative from a
particular proceeding for certain improper conduct, 29 C.F.R. 
18.36(b), or denial of the authority to appear in future
proceedings, 29 C.F.R. § 18.34(g)(3).  The ALJ found,
however, that Part 18 "[does] not specifically provide for the
award of attorney's fees and costs incurred by a party in
defending a frivolous suit or vexatious conduct of the opposing
party or counsel."  R.D. and O. at 7.  The ALJ held that, under
29 C.F.R. §§ 18.1 and 18.9(a)(8), he had the authority to order
the payment of attorney's fees and costs under Rule 11 of the
Federal Rules of Civil Procedure.  Section 18.1 of the ALJ Rules
of Practice provides that "[t]he Rules of Civil Procedure for the
District Courts of the United States shall be applied in any
situation not provided for control led by these rules, or by any
statute, executive order, or regulation."  29 C.F.R. Section
18.29(a)(8) provides that an ALJ, among other things, shall have
the power to 
[PAGE 3]
"where applicable, take any appropriate action authorized by the
Rules of Civil Procedure for the United States District 
Courts . . . ."
     The Wage and Hour Administrator takes the position that the
Federal Rules of Civil Procedure are not applicable here because
there is a provision in the Part 18 regulations which "provides
for" or "controls" this situation.  The Part 18 regulations
provide, at 29 C.F.R. § 18.36(b), that "[t]he administrative
law judge may exclude parties, participants, and their
representatives for . . . dilatory tactics, refusal to adhere to
reasonable standards of orderly and ethical conduct, [or] failure
to act in good faith. . . ."  The Wage and Hour Administrator
suggests the ALJ's finding that Complainant's counsel engaged in
"vexatious pursuit of a groundless action" is a form of "dilatory
tactics" covered by 29 C.F.R. § 18.36(b).
                             DISCUSSION
     Complainant first urges the Secretary to reverse the ALJ's
denial of his motion to dismiss the Second Amended Complaint for
lack of jurisdiction.  Complainant argues that the Second Amended
Complaint, on its face, did not state a claim over which the
Department of Labor has jurisdiction, and therefore the case
should have been dismissed without requiring Complainant to
present any evidence.
     I agree with Respondent, however, that Complainant has
confused dismissal for failure to state a claim upon which relief
can be granted with dismissal for lack of jurisdiction. Inability
to prove one of the elements of a claim under the ERA does not
deprive the Department of Labor of jurisdiction.  It simply makes
the complaint vulnerable to a motion to dismiss for failure to
state a claim.  Bell v. Hood, 327 U.S. 678, 681 (1946)
("[T]he court must assume jurisdiction to decide whether the
allegations state a cause of action upon which the court can
grant relief. . . .")  Moreover, even if it became apparent at this
stage of the litigation that the Department of Labor lacked
jurisdiction, the ALJ or the Secretary could still take action,
as described below, to discipline attorneys for improper conduct.
     The Secretary recently held that the Secretary only has the
authority under the ERA to order payment of attorney's fees and 
costs by a respondent after a finding of a violation, 42 U.S.C. 
§ 5851(b)(2)(B), but "[t]here is no provision [in the ERA]
for the recovery of costs and attorney's fees by a respondent."
Rogers v. Multi Amp Corp., Case No. 85-ERA-16, Sec. Dec.
Dec. 18, 1992, slip op. at 2.  In addition, the Secretary has
held that section 18.36 of the ALJ Rules of Practice provides a
remedy for conduct which is dilatory, unethical, unreasonable,
and in bad faith, so that Rule 11 of the Federal Rules of Civil
Procedure is 
[PAGE 4]
not applicable because the situation is "provided for or
controlled" by Department of Labor regulations.  Crosby v.
Hughes Aircraft Co., Case No. 85-TSC-2, Sec'y Dec. and Order
Aug. 17, 1993, slip op. at 14-15, appeal docketed,
Crosby v. Reich, No. 91-70834 (9th Cir. Oct. 18, 1993);
Cable v. Arizona Public Serv. Co., Case No.
90-ERA-15, Sec. Dec. Nov. 13, 1992, slip op. at 5-6;
see also Stack v. Preston Trucking Co., Case
No. 89-STA-15, Sec'y. Dec. and Order of Remand Apr. 18, 1990,
slip op. at 9.  I agree with the Wage and Hour Administrator that "vexatious
pursuit of a groundless action" would constitute dilatory,
unethical, unreasonable or bad faith conduct covered by 29 C.F.R.
§ 18.36(b).
     The Department of Labor is not entirely without recourse
where an attorney or the representative of a party abuses the
procedures for administrative adjudication of disputes.  It is
clear that the Secretary has the authority to regulate the
admission to practice of those who represent parties in cases
arising under the ERA, and to discipline those whose conduct
interferes with the carrying out of his responsibilities under
the Act.  In similar circumstances, the Supreme Court held in
1926 that the Board of Tax Appeals has the authority to adopt
rules of practice which may limit those who appear before it to
those whom the Board deems qualified.  The Court explained that
          the character of the work to be done by the
          Board, the quasi judicial nature of its
          duties, the magnitude of the interests to be
          affected by its decisions, all require that
          those who represent the tax-payers in the
          hearings should be persons whose qualities as
          lawyers . . . will secure proper service to
          their clients and to help the Board in the
          discharge of its important duties.  In most 
          of the Executive departments in which
          interests of individuals . . . are to be
          passed on by executive officers or boards,
          authority is exercised to limit those who act
          for them as attorneys to persons of proper
          character and qualification to do so. 
Goldsmith v. Board of Tax Appeals, 270 U.S. 117, 121
(1926). This Principle has been applied by a number of agencies
acting under a variety of statutes.  See Koden v.
United States Department of Justice, 564 F.2d 228,
232-233 (7th Cir. 1977) and cases discussed therein ("It is
elementary that any court or administrative agency which has the
power to admit attorneys to practice has the authority to disbar
or discipline attorneys for unprofessional conduct."  Id.
at 233.)  The Chief Administrative Law Judge, therefore, should
notify all Department of Labor ALJ's 
[PAGE 5]
of the recommendation of the ALJ in this case.  If Complainant's
attorneys enter an appearance in any case before a Department of
Labor ALJ after the date of this order, the ALJ, after notice 
and opportunity for hearing, may take the action authorized in 
29 C.F.R. § 18.4(g)(3) [1] 
     Finally, Complainant requests that the Secretary reverse the
ALJ's order that Complainant bear his own costs of travel from
his home in the state of Washington to his deposition in Houston
on March 6, 1989.  After several attempts to arrange a mutually
agreeable time for taking Complainant's deposition in the State
of Washington, Respondent made a motion to compel Complainant's
attendance at a deposition in Houston and the ALJ granted that
motion over Complainant's objection.  The ALJ also denied
Complainant's request for reconsideration of his order requiring
Complainant to bear his own costs of travel to the deposition.
     The Part 18 regulations provide that "[a] witness . . . may
not be required to attend a deposition . . . unless the mileage
and witness fee applicable to witnesses in the courts of the
United States . . . is paid in advance. . . ."  29 §
18.24(a).  The ALJ held, however, that the term "witness" in that
regulation does not include a party.  The ALJ went on to hold
that because Complainant had "removed himself from Houston
voluntarily," and had not been cooperative in scheduling his
deposition, that "[t]he expense he now faces is of his own
making.  ALJ Order of March 3, 1989, at 2-3.
     I express no opinion on whether the ALJ was correct in
reaching those conclusions.  Even if there were some basis for
requiring Respondent to pay Complainant's expenses of attending
his deposition, for reasons similar to those discussed above, I
find that the Secretary has no authority to order Respondent to
pay Complainant's travel expenses where there has been no finding
of a violation with a concomitant order to pay compensatory
damages.  42 U.S.C. § 5851(b)(2)(B).
     Accordingly, the complaint in this case is DISMISSED, and
Respondent's motion for attorney's fees and costs is denied.
     SO ORDERED.



                              ROBERT B. REICH
                              Secretary of Labor

Washington, DC





[ENDNOTES]
           
[1] 
  Complainant requests that this case be reassigned to 
another ALJ because the ALJ here "exhibited such inappropriate
partisanship as to . . . call into question his 
impartiality. . . ."  The part 18 regulations provide that
"[w]henever any party shall deem the administrative law judge 
for any reason to be disqualified to preside, in a particular
proceeding, that party shall file with the administrative law
judge a motion to recuse."  29 C.F.R. § 18.31(b).  However,
in light of my disposition of this case, Complainant's request is 
moot.