DATE: January 4, 1994
CASE NO. 90-ERA-10
IN THE MATTER OF
MANSOUR GUITY,
COMPLAINANT,
v.
TENNESSEE VALLEY AUTHORITY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Before me for review is the August 19, 1993, Recommended
Order of Dismissal (R.O.D.) of the Administrative Law Judge (ALJ)
in this case arising under the employee protection provision of
the Energy Reorganization Act, as amended (ERA), 42 U.S.C. §
5851 (1988). The ALJ recommended that the complaint be dismissed
without prejudice and with one year's leave to file a motion to
reopen within 30 days of the issuance of a "declaration of
competence to litigate the case" issued by Complainant's treating
psychologist. R.O.D. at 5.
1. Procedural history
In 1989, Complainant Mansour Guity filed two complaints
alleging that Respondent Tennessee Valley Authority (TVA)
included him in a reduction in force in retaliation for his
engaging in activities protected under the ERA. The District
Director of the Wage and Hour Division determined that the
allegations in the complaints could not be substantiated and
Complainant requested a hearing before an ALJ.
The ALJ scheduled a hearing for June 6, 1990. The parties
jointly requested a continuance of the hearing because of
[PAGE 2]
Complainant's mental condition, which has precluded his
prosecution of this complaint and a related action in Guity v.
Tennessee Valley Authority, Civ. No. 3-87-843, (E.D. Tenn.).
When the ALJ set a hearing for April 30, 1991, the parties
again jointly moved for a continuance and waived the statutory
time limits for a final decision in this matter. The ALJ granted
the continuance.
In September 1992, the District Court administratively
terminated the related action with permission to move for
reopening the case within 30 days of a declaration by a physician
that Guity is competent to prosecute his case.
In February 1993, the Deputy Chief ALJ ordered the parties
to show cause why the stay should not be lifted and this case set
for hearing. Guity responded that a previous order "allowed this
case to be held in abeyance until the federal court case is
concluded. The complainant does not envision this going beyond
the end of 1993." He asked that the case remain "in suspense" on
the pending docket. Comp. Brief Pursuant to Order dated Feb. 17,
1993, at 2.
In response to a subsequent Order, TVA argued that Guity had
not established his incapacity and noted that the ALJ could
dismiss the complaint for failure to prosecute. Resp.
Brief Pursuant to the April 13, 1993, Order at 2-3.
The ALJ found that:
Although the Complainant's mental condition
is an ameliorating factor, this matter cannot
be continued indefinitely, especially since
there has been no effort by the Complainant
to establish a record showing why this case
cannot go forward as directed in the first
Order to Show Cause, or that it will soon
be ripe for hearing. Counsel's assertions
concerning the Complainant's condition are
not evidence. (Emphasis in original).
May 19, 1993 Order at 4. The ALJ denied Guity's request to keep
this matter in suspense, and afforded Guity 60 days to submit a
physician's report stating that he is competent to participate in
the prosecution of this complaint. Id. at 5. The
ALJ further ordered that if such a physician's report was not
submitted, he would issue a Recommended Order dismissing the
complaint for failure to prosecute. Id.
Guity submitted the affidavit of his treating psychologist,
who stated that Complainant was "emotionally not able to
continue" prosecuting his complaint "without increasing his
psychological problems," and opining that "[t]here is little
question that [Complainant] will eventually be able to
conclude his case with the Department of Labor against TVA."
Affidavit of
[PAGE 3]
William Berez, Ph.D. (emphasis in original), attached to
Complainant's Response to May 19, 1993, Order. Guity requested
that this case remain open. Id.
2. The ALJ's Recommended Order of Dismissal
The ALJ noted that despite "counsel's optimistic
assessments," no action progressing this matter toward hearing
had occurred since prior to September 1990 and the psychologist's
affidavit did not provide any reasonably foreseeable date when
the hearing in this case might be held. R.O.D. at 4-5. He
reasoned that TVA'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." R.O.D. at 4-5.
Accordingly, the ALJ recommended that the Secretary "dismiss
the complaint without prejudice and with leave to file a
motion to reopen within 30 days of Complainant's treating
psychologist's declaration of competence to litigate this case."
R.O.D. at 5 [emphasis in original]. The ALJ further recommended,
id.,
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 [to] 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 such 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. [Emphasis in original]
3. The Show Cause Order and Responses
The Secretary issued an order to show cause why he should
[PAGE 4]
not issue a final order of dismissal conditioned according to the
ALJ's recommended order. October 4, 1993, Order to Show Cause.
TVA did not object to dismissal, but reserved its right to object
if Guity subsequently filed a motion to reopen. TVA
Response to Show Cause Order at 1. TVA argued that neither the
ERA nor the implementing regulations provide for motions to
reopen, and the Secretary has not adopted Fed. R. Civ. P. Rule
60(b) in ERA cases. Id. at 2. Alternatively, TVA argued
that even if a reopening motion were authorized, Guity should be
required to demonstrate that he has been mentally incompetent
throughout this proceeding and that his attorney was unable to
prosecute his complaint without his assistance, which was
precluded by his incompetence. Id. Finally, TVA
requested that any motion to reopen be filed no later than June
7, 1994, five years after Guity filed the initial complaint.
Id. at 3.
Guity opposed TVA's limitation on the time period for filing
a request to reopen and asked that he be permitted one year from
the final decision to file such a request. Guity's Response to
Respondent's Response to Order to Show Cause at 2.
4. Analysis
In the R.O.D., the ALJ assumes that I have authority to
reopen final decisions issued in ERA cases such as this.
Recently, in Bartlik v. Tennessee Valley Authority, Case
No. 88-ERA-15, Secretary Order, July 16, 1993, the complainant moved
for reconsideration of a final decision on the ground of material
error, and I stated that "I have considerable doubt, . . . that
in the absence of statutory authority, the Secretary has the
authority under the Federal Rules of Civil Procedure to
reconsider a final decision." Bartlik, slip op. at 3-4.
In any event, assuming that the Secretary "has inherent authority
to reconsider his decisions as any other agency," I denied the
motion for reconsideration in Bartlik.
Here, there is no issue of a request for reopening on the
ground of material error. Rather, under the procedure the ALJ
recommends, the Secretary initially would dismiss this complaint
without prejudice to Guity seeking to reactivate it within one
year, if Guity's physician/psychologist certifies that he is able
to prosecute his complaint. If Guity did not produce such a
certification within one year, the dismissal would convert to one
with prejudice. I find that the potential "reopening" outlined
above is not similar to the type of reopening that was at issue
in Bartlik. [1] Rather, the recommended provision for
leave to seek reopening is a means to ameliorate the admittedly
harsh sanction of dismissal with prejudice for failure to
prosecute, as I explain below.
An administrative agency's power to control its docket is
similar to that of a court. Billings v. Tennessee Valley
[PAGE 5]
Authority, Case Nos. 89-ERA-16, etal., Final
Dec. and Order, July 29, 1992, slip op. at 3. It is within the
power of a court to dismiss for failure to prosecute where the
plaintiff's mental incompetence has led to stagnation in the
case. For example, a federal court properly dismissed for
failure to prosecute notwithstanding a plaintiff's incompetence
due to ill health documented by a psychiatrist, where "the case
had been stagnant for over three years," and if plaintiff's
request for another continuance were granted, the case
"threaten[ed] to remain on the Court's docket indefinitely."
Mavy-Amenberg v. Marsh, 1991 U.S. LEXIS 20919 (9th Cir.
1991), reported as Table Case at 942 F.2d 790.
As the ALJ recognized, whereas Guity's psychological
condition is an ameliorating factor, the Department of Labor has
the inherent authority not to allow this case to remain open in
perpetuity. Although it is not necessary to show prejudice to
the defendant as a basis for dismissal for failure to prosecute,
West v. City of New York, 130 F.R.D. 522 (S.D.N.Y. 1990),
I agree that the passage of time could hamper TVA's ability to
prepare a defense. R.O.D. at 4. More than four years have
elapsed since Guity filed his complaint, and the failure of
memory or the dispersal of witnesses as they retire or obtain
employment elsewhere could prejudice TVA.
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. Ball, 2
F.3d at 758 and cases there cited.
As the ALJ noted, there is no assurance on this record that
Guity will be competent to proceed in any aspect of this case at
any time in the near future. For example, setting a cut off date
for discovery would be pointless, since Guity apparently remains
unable to be deposed. See Statement of William Berez,
Ph.D., at Par. 4. I therefore agree with the ALJ that sanctions
less severe than dismissal are not likely to be effective in this
case. R.O.D. at 5. Accordingly, I affirm the ALJ's dismissal
recommendation and discuss below the conditions of dismissal.
5. Conditions
The ALJ recommended that, in the interest of judicial
finality, Guity's authority to file a motion to reopen the
dismissal in this case should expire one year from the date of
the Secretary's final decision, and Guity agrees. See
Guity's Response to Respondent's Response to Order to Show Cause
at 2. TVA argues that the period should expire on June 7, 1994,
which
[PAGE 6]
is five years from the date that Guity filed the original
complaint. TVA Response to Show Cause Order at 3. In view of
the fact that providing a one year period to seek reopening is a
means to ameliorate the harsh effect of a dismissal with
prejudice, I will adopt the one year period that the ALJ
recommended.
The ALJ also recommended that a request to reopen be
accompanied by argument and appropriate evidence "showing that
the psychologist's declaration of competence was not unduly
delayed after the date of recovery." R.O.D. at 5. TVA suggests
that Guity also be required to
demonstrate through a preponderance of the
medical evidence that he has been mentally
incompetent throughout this proceeding, that
his attorney was unable to prosecute this
case without his assistance, which was
precluded by his incompetency, and that such
motion was filed within 30 days of his
achieving competency.
TVA Response to Order to Show Cause at 2. Guity does not oppose
this requirement, and I will adopt it.
Finally, the ALJ recommended that the request to reopen, if
any, be filed with the Secretary through the Office of
Administrative Appeals. Since no party objects, I will adopt
this condition.
ORDER
1. The complaint is DISMISSED without prejudice and with
leave to Complainant to file a motion to reopen within thirty
days of Complainant's treating physician or psychologist's
declaration of Complainant's competence to litigate the case.
The motion shall demonstrate by a preponderance of the medical
evidence that Complainant has been mentally incompetent
throughout this proceeding, that his attorney was unable to
prosecute this case without his assistance, which was precluded
by his incompetence, and that such motion was filed within 30
days of his achieving competence.
2. The time for filing such a motion to reopen shall expire
one year from the date of this Decision and Order. If no such
motion is filed timely, this dismissal shall be with prejudice.
3. Any such motion shall be made to the Secretary and shall
be submitted to the Office of Administrative Appeals, U.S.
Department of Labor, 200 Constitution Avenue, N.W., Room S-4309,
Washington, D.C. 20210.
SO ORDERED.
[PAGE 7]
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] In objecting to "reopening," TVA seems to elevate form over
substance. After a dismissal without prejudice a complainant may
refile a case. Here, the ALJ simply crafted a means to
reactivate the case before the ALJ, without requiring the
Complainant to restart the entire administrative process.
