DATE: July 29 1992
CASE NOS. 89-ERA-16
89 -ERA-25
90-ERA-2
90-ERA-8
90-ERA-18
IN THE MATTER OF
DOUGLAS E. BILLINGS,
COMPLAINANT,
v.
TENNESSEE VALLEY AUTHORITY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review are the Recommended Decisions and Orders
(R.D. and O.), the Recommended Decision and Order on Remand (R.D.
and O.R.), the Order denying recusal, and the Order denying
sanctions of the Administrative Law Judge (ALJ) in these cases
which arise under Section 210 of the Energy Reorganization Act of
1974, as amended (ERA), 42 U.S.C. § 5851 (1988). The ALJ
recommends that the complaints in the above cases be dismissed with
prejudice based on Complainant Douglas E. Billings' repeated
failures to comply with the ALJ's lawful orders. R.D. and O.R. at
1-2. See 29 C.F.R. § 24.5(e)(4)(i)(B). In addition,
the ALJ recommends that summary judgment be entered in favor of
Respondent Tennessee Valley Authority (TVA) in Case Nos. 90-ERA-2
and 90-ERA-8. R.D. and O. (90-ERA-2) at 9-11; R.D. and O.
(90-ERA-8) at 8-10.
BACKGROUND
During the period August 18, 1988, through October 14, 1989,
Complainant filed the complaints in these cases, alleging numerous
violations of the ERA. In each of the cases, the ALJ has provided
a detailed discussion of the factual and procedural background which
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need not be repeated here. See R.D. and O. (89-ERA-16) at
1-6; R.D. and O. (89-ERA-25) at 1-6; R.D. and O. (90-ERA-2) at 1-5;
R.D. and O. (90-ERA-8) at 1-5; and R.D. and O. (90-ERA-18) at 1-5.
In the R.D. and O.s, the ALJ noted that initially the proceedings
were delayed on several occasions at Complainant's request because
of his health problems. The ALJ stated that he did not penalize
Complainant for these delays. [1] See, e.g.,
R.D. and O. (89-ERA-16) at 8. The basis for the recommended
dismissals, as stated by the ALJ, was Complainant's failure to abide
by either of two orders to furnish a pretrial submission providing
a witness list and list of issues. Id.
DISCUSSION
I. Motion to Recuse
Complainant filed a motion requesting that the ALJ recuse
himself in these cases and now asks that the ALJ be removed.
Complainant's Brief (Com. Br.) at 4-5. In the February 26, 1990,
motion, Complainant alleged that the ALJ threatened sanctions
against him, combined five cases together, and went out of his way
to harass and intimidate Complainant. The ALJ denied the motion in
a June 12, 1990 order. Complainant contends that the A1J has
displayed great animus towards him by ignoring his ill health and
forcing Complainant to proceed with five cases at one time against
medical advice. Id. at 4. As noted in the R.D. and O.s and
supported by the record, the ALJ granted several continuances
because of Complainant's health. As explained more fully
infra, the ALJ made no decision requiring Complainant to
proceed with five cases at the same time, nor had it been
established that proceeding in that manner would have been unduly
burdensome to Complainant. Moreover, I have carefully reviewed the
entire record and see no basis for the ALJ to have recused himself.
I therefore adopt the order declining recusal.
II. Dismissal of Complaints
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
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not better serve the interests of justice. Consolidation Coal
Co. v. Gooding, 703 F.2d 230, 232-33 (6th Cir. 1983).
In arguing against dismissal, Complainant cites the AlJ's
refusal to accept his cardiologist's opinion. Com. Br. at 1, 3.
The cardiologist, Dr. Berglund, in a July 11, 1990 letter, stated
that Complainant "would benefit from having his trials staged in
single events rather than all five at the same time since it is
unlikely that he would be able to handle the stress level."
Complainant also argues that, although the ALJ separated the cases,
all documentation was due at the same time. [2] Com. Br. at
3.
As TVA argues, TVA Reply Brief (Rep. Br.) at 6, Dr. Berglund's
opinion focuses on conducting trials or hearings [3] and says
nothing about Complainant's capacity to submit multiple written
documents. The fact that the prehearing submissions were due at
the same time is not problematic in these cases because the ALJ
provided ample time for filing. [4] The first order, dated
June 12, 1990, allowed until July 23, 1990, for filing of the prehearing
submissions. By order dated August 9, 1990, the ALJ granted an
extension until September 14, 1990. From the date of the initial order,
therefore, Complainant had ninety-four days to complete his filings.
As TVA points out, if Complainant was unable to file all prehearing
submissions, he could
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have filed some of them during the time allotted or even moved for
acceptance of late filings. TVA Rep. Br. at 8. Instead, he refused
to file anything unless the ALJ acceded to his demands for separate
filings dates.
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 in
these cases. Consolidation Coal, 703 F.2d at 233; Avery
v. B&W Commercial Nuclear Fuel Plant, Case No. 91-ERA-8,
Sec. Dec., Oct. 21, 1991, slip op. at 3-4 (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). I therefore adopt the ALJ's recomended orders of
dismissal.
III. Complainant's Failure to Appear for Deposition
In Case No. 89-ERA-16, TVA, on February 16, 1989, served a
notice on Complainant informing him of its intent to depose him on
February 23, 1989. When Complainant failed to appear for the
deposition, TVA filed a motion to compel his appearance at a future
deposition and requested an order requiring Complainant to
reimburse TVA for its expenses of $476.00. The ALJ, by order dated
October 30, 1990, stated that neither the ERA nor the regulations
allows costs to be assessed against complainants.
TVA argues that under applicable law the ALJ had inherent
authority to impose costs on Complainant and that 29 C.F.R. §
18.1 adopted the Federal Rules of Civil Procedure which specifically
authorize the award of attorney fees as a sanction for a party's
unexcused failure to appear for a deposition. TVA's Brief at 23-24;
TVA's Response to Show Cause at 13-16.
Assuming without deciding that the Department of Labor has
inherent authority to impose costs, I must look to the regulations
to see if the Department has chosen to assert such authority.
Section 18.1 (a) states that the Federal Rules of Civil Procedure
"shall be applied in any situation not provided for or controlled by
these rules, . . ." ALJs are authorized to "[w]here applicable,
take any appropriate action authorized by the [Federal] Rules. . .
. " 29 C.F.R. § 18.29(a)(8). The regulations specifically
provide, however, for an ALJ to impose sanctions where a party fails
to appear for a deposition, and the assessing of costs is not listed
as an available sanction. 29 C.F.R. § 18.6(d)(2)(i-v).
Cf Fed. R. Civ. P. 37(d) (allows similar sanctions and also
provides for assessing costs). Because Section 18.6 provides for
remedying a party's failure to appear for a deposition, I conclude
that the Federal Rules do not apply in that situation. Further, the
Department has not elected
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to assert any inherent authority it may have to impose costs. I
therefore adopt the order denying costs.
CONCLUSION AND ORDER
For the foregoing reasons, I agree with the ALJ's conclusions that
there was no basis for recusal, that Complainant failed to comply with
the ALJ's lawful orders, and that there is no authority to impose costs
for Complainant's failure to attend his own deposition. The complaints
in these cases are dismissed with prejudice. [5]
SO ORDERED
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The ALJ stated that even during this period Complainant
demonstrated a reluctance to comply with the ALJ's orders as he
failed to file a required medical report detailing his progress and
providing an estimate as to when he could proceed with the hearing.
R.D. and O. (89-ERA-16) at 8.
[2] In responding to the ALJ's show cause order, Complainant
made essentially the same arguments.
[3] To the extent Complainant was concerned about presenting
five cases at once, his refusal to go forward was premature as the
ALJ informed the parties that a decision on whether to consolidate
one or more of the cases for hearing would be made after review of
the prehearing submissions. ALJ Order, June 12, 1990. Until that
time, the ALJ would not have had sufficient information to make a
decision on consolidating the cases for hearing. See 29
C.F.R. §24.5(b)
[4] Moreover, Complainant has no cause to complain about the
multiple filings required because the decision to bring several
complaints was his own choice. SeeWest Coast Theater
Corp. v. City of Portland, 897 F.2d 1519, 1524 (9th Cir. 1990)
(Plaintiff designated numerous defendants thereby making discovery
burdensome).
[5] TVA also requests that I rule on the recommended decisions
granting summary judgment in Case Nos. 90-ERA-2 and 90-ERA-8. Inasmuch
as the dismissals in these cases are adequately supported under 29 C.F.R.
§ 24.5(e)(4), it is unnecessary to address the merits.
