The undersigned issued an order on August 29, 2003, which set forth the rulings communicated to the parties during the August 28, 2003 conference call. The order consisted of the following: order denying Complainant's motion for partial summary judgment; order denying Complainant's motion for leave to file further exhibits/argument; order denying Complainant's motion to vacate the order dated August 7, 2003; order denying Complainant's motion to alter deadlines; order reserving judgment on Complainant's motion for a protective order; order reserving ruling on Respondent's motion to dismiss; pre-trial order; and a fourth amended scheduling order. Complainant's motion for partial summary judgment was denied under 29 C.F.R. § 18.40(d) since Complainant denied Respondent access to information by means of discovery. Allowing Complainant to prevail on a motion for partial summary judgment when he obstructed Respondent's ability to mount a meaningful defense to the motion would violate Respondent's right to procedural due process. Moreover, the undersigned found that the record was replete with genuine issues of material fact. The undersigned reserved ruling on Respondent's motion to dismiss. The undersigned noted that he was considering alternative sanctions to dismissal of his claim as authorized by 29 C.F.R. § 18.6(d), including but not limited to, inferring that the testimony of Complainant would have been adverse to Complainant, ruling that the testimony of Complainant is established to be adverse to Complainant, ruling that Complainant may not rely on his testimony in support of his claim, ruling that Complainant may not object to the introduction and use of secondary evidence to show what Complainant's testimony would have shown should he not appear for his deposition, or render a decision of the proceeding be rendered against Complainant. The undersigned requested that Complainant take note that the undersigned is considering assessing sanctions against Complainant due to his failure to cooperate in the prosecution of his claim and to follow orders of the undersigned Administrative Law Judge.

    The pre-trial order provided the parties with further instruction on the content of their prehearing statement, directing that the prehearing statements be prepared according to 29 C.F.R. § 18.7(b) and submitted to the undersigned by September 2, 2003. A prehearing conference call was scheduled for 9:00 am on September 5, 2003. The parties were informed that the formal hearing was to begin at 9:00 am on September 9, 2003. Following the admission of exhibits, which were to be marked, indexed, and exchanged between the parties, each party was informed that they would be permitted to make a fifteen-minute opening statement confined to offering into evidence and identifying the exhibits that each party intended to rely upon in support of their case.

   On September 4, 2003, the undersigned's legal technician, received several phone calls from counsel for Respondent and counsel for Complainant. The parties wanted to speak to the undersigned regarding Complainant's deposition. Since the undersigned was conducting hearings in Kentucky, the parties agreed to hold a conference call with Mr. Hoffman in order to present him with their concerns. The parties informed my attorney-advisor that Complainant's deposition had begun on September 3, 2003 as scheduled. The deposition was recessed around 6:00 pm on September 3, 2003. Complainant's deposition was renewed on the morning of September 4, 2003. At some point that afternoon, Complainant indicated that he could not continue his deposition because he was feeling ill because he had not taken his recently prescribed medication. The parties indicated that they had reached an agreement on how to proceed. The parties indicated to my attorney-advisor that Complainant's deposition was going to be recessed for the day. The parties were then going to travel to the offices of Respondent where Complainant was going to conduct informal interviews or review documents to be produced by Respondent. Counsel for Respondent agreed to produce a management employee of Respondent for a deposition on the morning of September 5, 2003. Upon the completion of that deposition, the deposition of Complainant was to be concluded. There was a discussion regarding rescheduling the prehearing conference from September 5, 2003 to September 8, 2003. Counsel for Complainant then informed my attorney advisor that he would contact my legal technician about his outstanding subpoena requests. My attorney-advisor informed counsel for Complainant of the undersigned's procedure for requesting subpoenas. Counsel for Complainant responded that he intended to complete the subpoena forms and indicated that he would like for the undersigned to send the completed subpoena's to Complainant's residence in Dayton, Ohio. Following a discussion with the undersigned, my attorney-advisor left messages with counsel for both parties rescheduling the September 5, 2003 prehearing conference to September 8, 2003 to accommodate the parties discovery agreement.

   The undersigned received a fax transmission from counsel for Complainant at 4:02 pm on September 5, 2003 that included a subpoena request for documents or objects in the possession of Respondent, as well subpoena requests for thirteen individuals. The parties again requested a conference call with attorney-advisor, since the undersigned was not available. The parties informed my attorney-advisor that the deposition of Craig Conrad, an employee of Respondent, had begun in the morning and concluded around 4:00 pm. Counsel for Respondent was then going to conclude the deposition of Complainant.

   During the discussion, counsel for Complainant requested that the undersigned issue an order requiring counsel for Respondent to designate a representative to observe while counsel for Complainant reviewed documents in the possession of Respondent at Respondent's offices on the evening of Friday, September 5, 2003 and on Saturday, September 6, 2003. Counsel for Respondent brought multiple boxes of documents with him to the deposition of Mr. Conrad. It was unclear to my attorney-advisor whether the boxes were given to Complainant, or whether Complainant was simply allowed to inspect the contents of the boxes during Mr. Conrad's deposition. My attorney-advisor then contacted the undersigned, informing the undersigned of Complainant's oral motion. He then communicated to the parties the undersigned's denial of Complainant's motion. The parties were instructed to address any unresolved discovery issues during the prehearing conference scheduled for 9:00 am on September 8, 2003.

   At the end of the conference call, counsel for Complainant asked my attorney-advisor if he had received a facsimile from Complainant that was to provide the address for overnight delivery of the Complainant's subpoena requests. My attorney-advisor stated that he had not received such a transmission. Complainant then provided him with the address of a Red Roof Inn hotel in Michigan where he desired to have the subpoenas sent to by overnight mail. With authority granted by the undersigned, Administrative Law Judge Joseph Kane signed the fourteen subpoena requests of Complainant on September 5, 2003. The subpoenas were then prepared and delivered to Federal Express by Office of the Administrative Law Judge staff for overnight delivery.

   At 9:47 pm on Sunday, September 7, 2003, counsel for Complainant left a voicemail message for my attorney-advisor. He provided the telephone number where he could be reached for the September 8, 2003 prehearing conference. Counsel for Complainant also stated the following:

   The undersigned conducted a prehearing conference call on September 8, 2003. At the outset, counsel for Complainant asked if a court reporter was present to transcribe the conference call. Upon being informed that there was indeed no court reporter, counsel for Complainant requested permission to record the conference call. The undersigned denied Complainant's request, noting that it was not his practice to record prehearing conferences, and it was not required by any provision in 29 C.F.R. § 18.8. Counsel for Complainant stated that they had not received the subpoenas at their hotel over the weekend. The undersigned provided Complainant with the option of picking the subpoenas up from the undersigned's office that day, if not, the undersigned would bring the subpoenas to the hearing. The parties informed the undersigned that the deposition of Complainant had been completed. After being informed of the manner in which discovery was conducted by the parties during the prior week, the undersigned stated that he was considering assessing sanctions against both parties. Complainant was informed that he was dangerously close to having his complaint dismissed. Respondent was warned that the undersigned was considering assessing sanctions related to the discovery process.

   During the conference, the undersigned denied Complainant's motion to bifurcate the trial. The undersigned also struck from the record pages 8 through 22 of Complainant's prehearing statement because counsel for Complainant incorporated, expanded upon, and used a substantial portion of Complainant's motion for partial summary judgment in direct violation of the undersigned's prior order rendered during the August 28, 2003 conference call. The parties informed the undersigned that they had not reached an agreement on the order and presentation of witnesses. Counsel for Complainant voiced his intent to call all witnesses listed in his prehearing statement during Complainant's case in chief, as well as all witnesses on Respondent's witness list. Counsel for Respondent requested that the undersigned order Complainant to be called as Complainant's first witness to avoid delay. The undersigned denied Respondent's request. Counsel for Complainant indicated that he could work with counsel for Respondent to reach an agreement by the beginning of the hearing on the order and presentation of witnesses. Respondent designated John Schroeder as its representative. Counsel for Complainant stated that Mr. Schroeder would be his first witness.

   At this point in the hearing, the undersigned said "[l]et's go to the exhibits," and asked Complainant to offer his exhibits. Counsel for Complainant then moved into evidence all of the parties' exhibits, "both Complainant's and Respondent's." Complainant then listed Respondent's exhibit numbers. The undersigned then stated to Complainant, "[t]ell me your exhibits." Counsel for Complainant relied, "Yes, Your Honor. The Complainant's exhibits are numbered." The undersigned asked for an index of Complainant's exhibits, which was provided. Counsel for Complainant stated that Complainant's exhibits were essentially the same as the exhibits that were attached to Complainant's motion for partial summary judgment, except for a correction to a couple of the entries and the addition of exhibit 34. The undersigned then asked Complainant if his exhibits were bound for trial, noting that he had Complainant's exhibits from his motion for partial summary judgment. Counsel for Complainant stated that Complainant was going to supplement the exhibits from his motion for partial summary judgement "with 34 and some of the others and double-check if we could borrow Your Honor's book back tonight?"

   The undersigned informed Complainant that he did not understand Complainant's process for offering exhibits, and then asked Complainant is he was asking the undersigned to utilize the summary judgment exhibits as exhibits in this proceeding. Complainant responded, "[y]es," to which Respondent raised an objection. Respondent objected because specific documents had not been identified, asserting that Respondent did not have knowledge of what documents Complainant was actually relying upon.

   Counsel for Complainant cited to Seater v. Southern California Edison to argue that the undersigned was required to "let everything in." At this point in the hearing, the undersigned stated that he did not like the manner in which the hearing was proceeding, and then asked Complainant whether the parties had "talked for one moment with each other about your exhibits here today;" counsel for Complainant responded that there had been no discussion among the parties prior to the hearing about exhibits. Complainant then offered into evidence Complainant's exhibits 1 through 25, 27 through 31, and 34, which were all marked for identification. Complainant reserved Complainant's exhibits 26, 32, and 33 for "[t]he ones that are reserved but are not present yet because they don't exist yet." Counsel for Respondent then listed whether or not he had an objection to each of Complainant's exhibits from 1 to 11. Counsel for Respondent then alleged that he did not have copies of Complainant's exhibits from 11(a)

onwards. The following exchange then occurred between the undersigned and counsel for the parties:

    JUDGE PHALEN: Well, I want you to listen to - you're saying all through 34 - 12 through 34 that you don't have a compiled presentation of those documents?
    MR. BATTEN: That's correct.
    JUDGE PHALEN: Do I?
    MR. SLAVIN: I believe you do, Your Honor. They were served but again, we will have an extra book. We have additional copies here if anyone needs them. They were sent after the summary judgment exhibits in several batches.
    MR. BATTEN: Are they marked?
    MR. SLAVIN: They should be, yes, and we have new notebooks as well. They should be in the Judge's notebook.
    JUDGE PHALEN: Can you-
    MR. SLAVIN: I think it's on the corner of the bench, Your Honor, to Your Honor's right at the very corner in the black notebook. Is that it?
    JUDGE PHALEN: Well, this goes through 25.
    MR. SLAVIN: Okay.
    MR. BATTEN: I don't have a copy of any such notebook, nor was I served with anything like that.
    MR. SLAVIN: I don't believe Mr. Batten was served with a notebook. I think he was served with several batches of documents.
    MR. BATTEN: And I would like to see some kind of a proof of service or something like that because I don't think I have been.
    MR. SLAVIN: Mr. Howick has it.
    JUDGE PHALEN: Do you have these?

    JUDGE PHALEN: Mr. Slavin, do not argue your motion for summary judgment to me again.
    MR. SLAVIN: I wasn't arguing. I was just renewing it.
    JUDGE PHALEN: Do not raise it or argue it as you had. You are repeating your motion for summary judgment. I have denied it. I'm not going to entertain it at this time. You are the one that is not prepared here at this hearing.
    MR. SLAVIN: We're prepared to examine the first witness.
    JUDGE PHALEN: You are not prepared here at this hearing to do what I want done now with the exhibits.
    MR. SLAVIN: May we have a short break?
    JUDGE PHALEN: Why?
    MR. SLAVIN: So that Mr. Howick can finish assembling the extra copy of the exhibits for the Respondent.
    JUDGE PHALEN: And how - what do you mean extra copy? It's not an extra copy to me. To me, it is the exhibits that belong to both my bench and to the opposing party.
    MR. SLAVIN: Previously served except for CX 34, sir.
    JUDGE PHALEN: No, not previously served. I'm not accepting that. You have exchanged documents but they haven't been designated as exhibits.

    MR. SLAVIN: They had exhibit labels on them and they were exchanged. I don't understand, Your Honor. I just don't understand.
    JUDGE PHALEN: The delay you should understand.
    MR. SLAVIN: Your Honor, it seems -
    JUDGE PHALEN: We are at a point in this proceeding where we are dealing with the identity and numbering of exhibits that should have been marked and exchanged by the prehearing conference. They weren't.
    MR. SLAVIN: They were, Judge.
    JUDGE PHALEN: Mr. Batten, did you know what exhibits he had submitted to you?
    MR. BATTEN: No, Your Honor. He had filed - he has filed a motion for partial summary judgment where he has designated various documents that had been served in discovery, and I have received in discovery those documents marked 1 through 11 but they were not marked as exhibits when I first received them.
    JUDGE PHALEN: As trial exhibits?
    MR. BATTEN: That's correct.
    JUDGE PHALEN: Were you told they were going to be trial exhibits?
    MR. BATTEN: Well, I know now by virtue of the fact in his Prehearing Order that he designated certain documents that he wanted them to be trial exhibits, but I was not served with copies at that time as being the actual trial exhibits that he would introduce.
    MR. SLAVIN: Your Honor, I think this is some hair splitting. These were served with exhibit labels. They knew they were trial exhibits. Mr. Howick has the proof of service. They are not denying they received it. If they want another book, Mr. Howick is preparing it right now, but we are prepared

    JUDGE PHALEN: What about after 12?
    MR. SLAVIN: After 12 in several segments, Mr. Howick, as the exhibits became available, and were prepared served them, and there is proof of service on those.
    MR. BATTEN: Let me speak, Your Honor. Number one, Mr. Slavin is counsel. It's not Mr. Howick's duty to be serving documents number one, and number two
    MR. SLAVIN: Your Honor, that is none of their business.
    JUDGE PHALEN: Stop. I'll address you when it's time. I'm listening to Mr. Batten.
    MR. BATTEN: And secondly, I do not believe that I have been served with any exhibits marked after Exhibit 11. I don't believe that I have a copy of Exhibit 11(a), and I don't believe that I have a copy of any other marked exhibit
    JUDGE PHALEN: After 12?
    MR. BATTEN: Including 12. I don't have 12.
    MR. SLAVIN: Then -
    JUDGE PHALEN: As an exhibit?
    MR. BATTEN: Correct.
    MR. SLAVIN: Your Honor, if that were the case, then why during depositions last week on Wednesday, Thursday, Friday, this weekend, yesterday or this morning, did Mr. Batten never tell us in response to our specific question that he lacked any of the exhibits? We asked him: "Do you have everything that is on our prehearing exchange document?" Let me point out, Your Honor, that I was in New Jersey for my father's funeral, and I cannot be in two places at once, and Mr. Howick has the right, and he is the party, and I designated him to serve the exhibits that we identified. The Certificate of Service sheets are here, Your Honor, Mr. Howick's copy, and we can make copies and provide the Court with copies of these documents but they were served.

    MR. BATTEN: Just for the record, Your Honor, I would be willing to go back and look at that deposition transcript because I believe
    MR. SLAVIN: It wasn't on the record, Your Honor. We did not clutter the record.
    MR. BATTEN: Well, I believe that there is something on the record about the -
    JUDGE PHALEN: Stop for a moment.
    COURT REPORTER: Excuse me, Your Honor. They need to speak one at a time. I'm not picking up Mr. Slavin.
    JUDGE PHALEN: One at a time.
    MR. BATTEN: I believe that there is something on the record when the question of Exhibit 5(a) came up and I said: "Don't mark it because I was having a problem with a binder which incorporates all kinds of different documents, and saying that that is going to be a trial exhibit." It is not a trial exhibit. These things have facsimiles to OSHA. They have copies of web pages from OSHA. They have all kinds of different things in them.
    MR. SLAVIN: And again, I asked Mr. Batten, Your Honor, during the deposition and perhaps he is right. The discussion on 5(a) and (b) might even be in the transcript, and we would be happy to pull it up for Your Honor if you want to see it?

   Counsel for Complainant responded as follows:

    MR. SLAVIN: Does the Court have any questions before I begin?
    JUDGE PHALEN: No.

    MR. SLAVIN: What would you like me to say, Your Honor?
    JUDGE PHALEN: I'm not here to argue the case. We're solely addressing the motion to dismiss for what I consider to be the material failure of the Claimant to be prepared to present his case.
    MR. SLAVIN: But he is, Your Honor, and about an hour ago you said you were going to try this case.
    JUDGE PHALEN: You know, that's a statement that was already subject to the motion to dismiss that I told you you were really at the brink. You apparently don't believe those things. I told you it was hanging by a thread. Now saying that we're going to proceed is not some kind of a new ruling. It is attempting to get the case on, and
    MR. SLAVIN: May I call the first witness?
    JUDGE PHALEN: No, you may not. Was your statement may I call the first witness?
    MR. SLAVIN: Yes, Judge.
    JUDGE PHALEN: The answer is no.

    MR. SLAVIN: The Respondent has blocked Mr. Howick's efforts to obtain justice every step of the way from OSHA to OALJ. This is the largest most powerful agency on this planet in a public group which is currently under SEC investigation. It has sandbagged Mr. Howick. It has made discovery abuse positions throughout this case. We have discovery responses that Your Honor hasn't seen yet perhaps, or hasn't had an opportunity to read but basically the case is admitted. We have undisputed evidence, and there is nothing that Mr. Howick did wrong. He gave his deposition. Initially, it was agreed that the deposition was going to be on the 20th of August. He gave his deposition on the 3rd, 4th and 5th of September. He didn't have time to take the 10 depositions or employee interviews that Your Honor ordered he had a right.
    JUDGE PHALEN: Okay. Your time is up.
    MR. SLAVIN: Thank you, Your Honor. Thank you for your consideration.

   Respondent, in his response, alleged that Complainant had failed to produce tapes containing recordings of certain conversations with and messages left by Respondent's witnesses. Complainant was permitted a two-minute time period for rebuttal. Counsel for Complainant, upon being asked during his rebuttal to answer with a "yes" or a "no" by the undersigned to the question of whether Complainant refused to produce the tapes that Respondent requested, stated "[w]e declined. We didn't refuse." Respondent then filed with the undersigned a copy of Complainant's deposition transcript. Complainant then renewed his request to have Respondent bring certain documents to the courtroom, which the undersigned denied since Complainant's claim had been dismissed. Complainant requested a recess, which the undersigned denied. Complainant then asked the undersigned to disclose any communication the undersigned had with Judge John Vittone, Judge Thomas Burke, or Todd Smith, asserting that Judge Vittone's hostility towards protected activity by counsel for Complainant and former Chief Judge Nahum Litt had caused the undersigned to be prejudiced against Complainant. Complainant then requested that the undersigned recuse himself. The undersigned denied those requests. The undersigned then stated:

    JUDGE PHALEN: My observation here today is that you are not ready to proceed. You've come in here with documents which were supposed to have been marked as exhibits that were not marked as exhibits. There are stacks of them over there. Mr. Batten has not been served precisely with what is going to be the exhibit. I have not been. I had to fish in the beginning to see if these were the documents related to the summary judgment motion. In my opinion, you are not prepared. And when I look at this Exhibit 5(a) as being a collection of documents that aren't designated and 5(b), it reinforces my position. If we go through with this hearing, we are going to be sorting out documents ad infinitum, and it is my observation that you are not ready to proceed.
    MR. SLAVIN: Motion to -

    JUDGE PHALEN: You have not followed the orders of my -- of this Court.
    MR. SLAVIN: Motion to continue until 1:00 p.m.
    JUDGE PHALEN: Stop interrupting me. Do not interrupt me. I believe that there has been a material failure to participate in the discovery and I stated the reasons why in my order. Nothing has happened since my order to reverse that. I believe also that Respondent has caused a failure to produce documents that stand on their own and for which I intend to issue sanctions and that, however, is a separate matter as I stated at the outset of this hearing from the chain of events that are involved with regard to the failure to produce Mr. Howick for a deposition. This matter by ardent attempts by counsel to get together to do the deposition early on could have been handled.

    The undersigned informed Complainant that he had violated the undersigned's prehearing orders regarding preparation for the hearing. The undersigned declared that Complainant was not prepared to prosecute his case in accordance with the undersigned's prehearing orders and directives. The undersigned then invoked Respondent's motion to dismiss, which the undersigned had reserved ruling on for the outset of the trial. The undersigned ruled that Complainant had failed to prosecute his case. The undersigned ordered that Complainant's claim be dismissed for a failure to prosecute.

   Additionally, the undersigned provided the parties with thirty-days in which to file briefs responsive to the issue of sanctions to be assessed in response to the discovery abuses that occurred in this matter.

   29 C.F.R. § 1978, together with 29 C.F.R. § 18, implements the procedural aspects of the STAA. 29 C.F.R. § 1978.100(a), (b). Formal hearings on STAA complaints are to be conducted in accordance with the rules of practice and procedure for administrative hearings before the Office of the Administrative Law Judges promulgated at 29 C.F.R. § 18. 29 C.F.R. § 1978.106(a). The authority of an administrative law judge to conduct a fair and impartial hearing is set forth in 29 C.F.R. § 18.29. Generally, an administrative law judge is authorized to take any action authorized by the Administrative Procedure Act, take any appropriate action authorized by the Rules of Civil Procedure for the United States District Courts, and to do all other things that are necessary to enable the administrative law judge to discharge the duties of the office. 29 C.F.R. § 18.29(a)(6, 8, 9). Specifically enumerated in 29 C.F.R. § 18 are the powers of an administrative law judge, with regard to the motions and requests of parties, when a party or officer or agent of a party fails to comply with a subpoena or with an order of the administrative law judge. 29 C.F.R. § 18.6(d)2). The specifically enumerated powers permit an administrative law judge to:

    (1) Infer that the admission, testimony, documents, or other evidence would have been adverse to the non-complying party;
    (2) Rule that for the purposes of the proceeding the matter or matters concerning which the order or subpoena was issued be taken as established adversely to the non-complying party;
   (3) Rule that the non-complying party may not introduce into evidence or otherwise rely upon the testimony by such party, officer or agent, or the documents or other evidence, in support of or in opposition to any claim or defense;
   (4) Rule that the non-complying party may not be heard to object to the introduction and use of secondary evidence to show what the withheld admission, testimony, documents, or other evidence should have shown; or
    (5) Rule that a pleading, or part of a pleading, or a motion or other submission by the non-complying party, concerning which the order or subpoena was issued, be stricken, or that a decision of the proceeding be rendered against the non-complying party, or both.

29 C.F.R. § 18.6(d)(2)(i-v) (emphasis added). It is evident that an administrative law judge has been granted the authority, where appropriate, to dismiss the complaint of a party who violates the orders of the administrative law judge. Therefore, it is important to determine when it is appropriate to dismiss the complaint of a party for failing to follow the orders of an administrative law judge.

   The Administrative Review Board ("ARB") has affirmed an administrative law judge's decision to dismiss a complaint for failure to prosecute. See Bacon v. Con-Way Western Express, ARB No. 01-058, ALJ No. 2001-STAA-7 (ARB Apr. 30, 2003). Bacon, the complainant, initially refused the administrative law judge's advice to obtain an attorney and requested a hearing as soon as possible. Bacon ARB No. 01-058, p. 2. Prior to going on the record the day of the hearing, Bacon engaged in an almost hour-long diatribe against the respondent and its witnesses. Id. At that point, the administrative law judge opened the hearing on the record and asked the parties if there were any preliminary matters to be addressed. Id. Bacon requested a continuance so that the administrative law judge could provide an attorney for him. Id. Since the administrative law judge had previously informed Bacon that he could not

appoint an attorney for him, the administrative law judge attempted to proceed with the hearing. Id. Bacon then became disruptive, refused to proceed with his case, and "hurl[ed] invective and verbal abuse" at the administrative law judge and the respondent's witnesses. Id. When Bacon continued his "repeated abusive, belligerent, and irate behavior," after warnings from the administrative law judge, the administrative law judge adjourned the hearing and summoned United States Marshalls to escort Bacon from the courtroom. Id. The administrative law judge issued an order to show cause why Complainant's claim should not be dismissed. Id. Upon receiving a brief from Respondent in support of dismissal and a response from Bacon that the administrative law judge deemed "essentially [an] incomprehensible rant laced with invective against Respondent," the administrative law judge issued a recommended decision and order dismissing Bacon's complaint. Id.

   In beginning their analysis, the ARB referenced their recent holding that "[c]ourt's possess ‘inherent power' to dismiss a case for lack of prosecution." Reid v. Niagara Mohawk Power Corp., ARB No. 00-082, ALJ No. 2000-ERA-23 (ARB Aug. 30, 2002), citing Link v. Wabash Railroad Co., 370 U.S. 626, 630 (1962). However, the ARB recognized that a dismissal with prejudice is a severe sanction that defeats a litigant's right to access the courts, and that it should be used as a weapon of last resort and reserved for extreme circumstances. Bacon, ARB No. 01-058, p. 3. The ARB then identified to the factors that the federal circuit court of appeals, under which Bacon's claim arose, stated should be considered before a dismissal of a case for want of prosecution is warranted. Id. at 4. The ARB proceeded to analyze the administrative law judge's decision under those factors. Even thought the ARB acknowledged that in many cases dismissed for a lack of prosecution, the failure to prosecute resulted in a delay of months or even years, the ARB affirmed the administrative law judge's decision to dismiss the claim for failure to prosecute, noting that Bacon's totally unacceptable conduct and the absence of the expression of an apology or avowal to conform his conduct to an appropriate standard in the future was an additional factor that tips the balance in favor of dismissal. Id. at 4, 5.

   The Sixth Circuit has voiced its reluctance to uphold the dismissal of a claim merely to discipline an attorney. See Coleman v. American Red Cross, 23 F.3d 1091, 1094 (6th Cir. 1994). In fact, the Sixth Circuit has held that "[d]ismissal is usually inappropriate where the neglect is solely the fault of the attorney." Carter v. City of Memphis, Tenn., 636 F.2d 159, 161 (6th Cir. 1980). The Sixth Circuit has reversed a dismissal, finding that the sanction was "extremely harsh in that it deprives a plaintiff of his day in court due to the inept actions of his counsel[.]" See Patterson v. Township of Grand Blanc, 760 F.2d 686, 688 (6th Cir. 1985) (implicitly finding that any potential claim a plaintiff may have against his inept attorney did not overcome the harm the plaintiff would suffer from dismissing the action). The United States Supreme Court has not been as reluctant to enforce a the dismissal of a plaintiff's complaint for the failures of his attorney. In Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), the Court upheld the district court's inherent power to dismiss an action with prejudice when the plaintiff's attorney, who had a history of dilatory conduct, missed a pretrial conference without an adequate excuse. Gripe, 312 F.3d at 1189, citing Link, 370 U.S. at 633, 634. In Link, Justice Harlan wrote:

There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney.

Id. at 1189, citing Link at 633-34, 82 S.Ct. 1386 (internal quotation marks omitted). The Tenth Circuit in Gripe noted that the footnote from the above-quoted passage in Link explains:

Clients have been held to be bound by their counsels' inaction in cases in which the inferences of conscious acquiescence have been less supportable than they are here, and when the consequences have been more serious. Surely if a criminal defendant may be convicted because he did not have the presence of mind to repudiate his attorney's conduct in the course of a trial, a civil plaintiff may be deprived of his claim if he failed to see to it that his lawyer acted with dispatch in the prosecution of his lawsuit. And if an attorney's conduct falls substantially below what is reasonable under the circumstances, the client's remedy is against the attorney in a suit for malpractice. But keeping this suit alive merely because plaintiff should not be penalized for the omissions of his own attorney would be visiting the sins of plaintiff's lawyer upon the defendant. Moreover, this Court's own practice is in keeping with this general principle. For example, if counsel files a petition for certiorari out of time, we attribute the delay to the petitioner and do not request an explanation from the petitioner before acting on the petition.

Id. at 634 n. 10, 82 S.Ct. 1386 (citations omitted).

   Despite recognizing dismissal of a claim for failure to prosecute as a harsh sanction, the Sixth Circuit also recognizes competing concerns that should guide a court considering a motion to dismiss. Specifically, the Sixth Circuit has identified the court's need to manage its docket, the public's interest in expeditious resolution of litigation, and the risk of prejudice to a defendant because the plaintiff has failed to actively pursue its claim. Little v. Youter, 984 F.2d 160, 162 (6th Cir. 1993). The Secretary, preserving the integrity and ethical manner in which administrative hearings are to be conducted, has upheld a dismissal of a complaint where the complainant failed to accept certified mail, had not responded to several orders issued by an administrative law judge, and had not responded to telephone communications. See Cohen v. Roberts Express, 1991-STAA-29 (Sec'y Feb. 11, 1992). The Secretary has also affirmed an administrative law judge's recommended dismissal of a complaint where the complainant did not comply with discovery and pre-trial orders. See White v. "Q" Trucking Co., 93-STAA-28 (Sec'y Dec. 2, 1994).

   The case law makes it clear - since dismissal of a complaint is such a harsh sanction that denies a party's right to access the courts, it is only appropriate as a matter of last resort in response to a party's record of delay or contumacious conduct. The federal appellate courts prefer that dismissal be used to discipline an attorney, but rather to preserve the integrity of the court and to prevent prejudice to the opposing party, even though the Supreme Court's holding in Link remains valid law.

   The record of delay and malfeasance of Complainant and his counsel warrants the dismissal of Complainant's claim. Complainant's deposition, which was originally noticed to begin on January 29, 2003, was not finally completed until September 5, 2003; four days before the hearing was to begin. The hearing, which was originally scheduled to begin on April 29, 2003, was rescheduled to begin on June 10, 2003, and then again rescheduled to begin on September 9, 2003. Complainant, while acting pro se, agreed to answer Respondent's interrogatories and requests for production of documents by February 24, 2003. Following several extensions of time based on Complainant's personal reasons, Complainant finally provided Respondent with answers to interrogatories and request for production of documents over six months later on August 8, 2003. Counsel for Complainant notified the undersigned on August 11, 2003 that his father had died, adding that he was "going to want to reschedule the depositions." Between August 11, 2003 and August 18, 2003, neither Complainant nor his counsel was able to effectively communicate to Respondent that Complainant was not going to appear for his deposition on August 19, 2003, and the deposition was only able to be rescheduled for September 3, 2003 by intervention of the undersigned on August 28, 2003. In fact, in response to the undersigned's attorney-advisor's question as to whether he intended to appear for his deposition, Complainant ignored the question, and instead chose to discuss his efforts to file exhibits with the undersigned in support of his motion for partial summary judgment.

   When Complainant finally appeared for his deposition, he needed a recess during the afternoon of the second day of his deposition because he was feeling ill due to his failure to take his prescription medication. In addition to the delay Complainant caused by failing to take his prescription medication, Complainant and his counsel "declined to" produce tapes that Respondent had requested. In addition, upon review of volume one of Complainant's deposition, it is apparent that he delayed the completion of the deposition by providing lengthy responses. Counsel for both parties acknowledged to the undersigned's attorney-advisor that Complainant's lengthy answers were the reason for the length of the deposition.

   As a result of the dilatory conduct of Complainant and his counsel, Respondent's was materially prejudiced: Respondent's procedural due process rights to mount a meaningful defense were compromised. Complainant, by delaying his deposition for over seven months and not finally concluding his deposition until 6:15 pm on Friday, September 5, 2003, with the hearing set to begin on September 9, 2003, contributed to and therefore prevented Respondent from mounting a meaningful defense. Because of the time at which Complainant's deposition was finally completed, Respondent was prevented from developing or pursuing any evidence that may have arisen out of Complainant's deposition.

   Complainant was first warned that the undersigned was considering dismissing his complaint during a telephone conference on August 28, 2003. The undersigned's admonishments were memorialized in an order dated August 29, 2003, wherein the undersigned reserved ruling on Respondent's motion to dismiss until the hearing, based in part on Complainant's attendance at and cooperation in completing his deposition. At the prehearing conference on September 8, 2003, the undersigned informed Complainant that he was dangerously close to having his claim dismissed. Complainant was again warned at the hearing that the undersigned would consider Respondent's motion to dismiss if the undersigned determined that Respondent was materially prejudiced by Complainant's delay in appearing for his deposition.

   Beyond warning Complainant that his failure to cooperate could lead to dismissal, the undersigned also informed Complainant that he was considering the imposition of less drastic sanctions. The undersigned specifically identified the sanctions enumerated at 29 C.F.R.. § 18.6(d) as sanctions that were being considered to remedy the prejudice Respondent suffered as a result of Complainant's delay in appearing for his deposition. Although the undersigned had already granted two continuances of the hearing, Complainant did not request a continuance of the September 9, 2003 hearing until after the undersigned dismissed his claim. By reserving ruling on Respondent's motion to dismiss, the undersigned afforded Complainant a second chance at having his claim heard on the merits. At the hearing, the undersigned clearly expressed his intent to have this matter proceed to a full and fair hearing, urging Complainant to cease arguing over discovery matters and to offer his exhibits into evidence.

   The undersigned did not dismiss Complainant's claim solely to discipline Edward Slavin, Esq. Complainant initially appeared pro se. He participated in all conference calls. However, for the last three or four conference calls, the undersigned had to order Complainant, who was represented by counsel, not to speak unless the undersigned asked him a question, due to the frequency of Complainant's previous interruptions. The undersigned reserved ruling on Respondent's motion to dismiss, predicating a final ruling on Complainant's attendance at and cooperation with the taking of his deposition on September 3, 2003. Even after Edward Slavin, Esq. appeared on his behalf, Complainant continued to maintain an active role. Complainant acted as a quasi-secretary and co-counsel to his counsel. For instance, Complainant assumed the responsibility for notifying Respondent that he would appear for the deposition scheduled for August 19, 2003. Respondent who apparently was not made aware that Complainant would not attend his deposition, contacted the undersigned's attorney-advisor to see if he could ascertain whether or not Complainant would attend his deposition on August 19, 2003. The undersigned's attorney-advisor asked Complainant whether he was going to attend through an email and a message left on Complainant's home answering machine. Complainant responded by email, but failed to answer whether or not he would attend. He chose, instead, to inform the undersigned's attorney advisor of the personal challenges he faced in submitting documents to the undersigned and his sympathy for the family of his counsel. Complainant's personal

inconveniences, health, and misfortune were repeatedly raised to excuse his attendance at properly noticed depositions, timely completion of answers to Respondent's interrogatories and request for production of documents, and for numerous extensions of time. Complainant's failure to take prescription medication resulted in the continuance of the second day of his deposition. Complainant blamed his lack of preparedness at the hearing on a panic attack he suffered on September 7, 2003 that allegedly required Complainant to be at a hospital for several hours. Complainant maintained an active role throughout the proceeding, and his personal reasons were the primary source of delay throughout the proceeding. The undersigned finds that Complainant demonstrated a reckless disregard for the effect of his conduct on this proceeding. His conduct thwarted Respondent's ability to mount a meaningful defense.

   Despite the undersigned's admonishment, Complainant and his counsel continued the same pattern of behavior during the hearing. When asked to offer Complainant's exhibits into evidence, counsel for Complainant continued his dilatory behavior by offering into evidence Respondent's exhibits. The undersigned pressed Complainant to identify the exhibits he intended to introduce, yet counsel for Complainant was evasive. It quickly became clear to the undersigned that Complainant did not have a bound set of marked exhibits to provide to the undersigned and Respondent. In fact, Complainant himself was in the back of the courtroom organizing documents into exhibits. The list of Complainant's exhibits provided to the undersigned at the hearing identified 34 exhibits, while the book of exhibits provided to the undersigned at the hearing only contained exhibits up to 5C.

   It is worthy of mentioning at this point that Complainant did not ever request that the hearing date of September 9, 2003 be rescheduled. Complainant represented that he would be ready to proceed on September 9, 2003. However, when the time arrived, Complainant was not prepared to begin. As usual, Complainant blamed his unpreparedness on a combination of personal reasons and Respondent's tactics. The undersigned viewed Complainant's lack of preparedness to begin the hearing coupled with his failure to request a continuance to be the quintessential straw that broke the camel's back. While any one action of Complainant and his counsel independently might not have warranted dismissal as a sanction, the overall effect of the dilatory and contemptuous behavior of Complainant and his counsel materially prejudiced Respondent's ability to mount a meaningful defense to Complainant's allegations, wasted the time and resources of the Office of the Administrative Law Judges, and offended traditional notions of fair play and substantial justice. The actions of Complainant and his chosen counsel led to congestion of the undersigned's calendar. The undersigned finds that the behavior of Complainant and his counsel warrants a dismissal for failure to prosecute, notwithstanding any failure of Respondent to provide discovery documents to Complainant in a timely and meaningful manner. Respondent's actions or inactions related to discoverable evidence in this matter will be addressed by the undersigned following the submission of briefs on the subject from the parties.

   On or about 3:30 pm on September 17, 2003, while the present Recommended Decision and Order - Dismissal of Complaint was being prepared for filing, Complainant filed the following: (1) a letter entitled " COMPLAINANT MR. MARK E. HOWICK'S REQUEST FOR SUBPOENAS, MOTION TO ORDER IN CAMERA REVIEW AND IMPOUND DOCUMENTS, MOTION FOR LEAVE OF COURT TO FILE MOTION TO RECONSIDER SEPTEMBER 9, 2003 ORDER DISMISSSING FOR "FAILURE TO PROSECUTE", AND COMPLAINANT'S SUGGESTION OF SUA SPONTE JUDICIAL RECUSAL."; (2) COMPLAINANT'S MOTION FOR DEFAULT JUDGMENT AGAINST CAMPBELL-EWALD; (3) DECLARATION OF MARK E. HOWICK; (4) A suggested order of default judgment to be entered against Respondent; and (5) two subpoenas duces tecum requesting that Complainant be permitted to inspect and copy "[a]ll discover production documents requested by Mr. Howick, all microfilm, paper/electronic documents bearing his name and all privilege logs." The foregoing five documents were filed prematurely and have not evaluated by the undersigned before issuing this present Recommended Decision and Order - Dismissal of Complaint. Complainant may re-file the remaining documents in response to the present order, file new documents responsive to the present order, or avail himself of any action to which he is legally entitled.

   Again, the undersigned stresses that his decision to dismiss Complainant's claim was not based on any one action or inaction. Rather, after considering the totality of the circumstances leading up to the hearing in conjunction with Complainant's lack of preparedness at the hearing, the undersigned determined at the hearing that dismissal was the appropriate sanction. Complainant was well aware of the fact that the undersigned was considering imposing sanctions against him. Complainant and his counsel were both culpable. The undersigned does not believe that an alternative sanction, such as ruling that Complainant is precluded from relying upon his own testimony, would adequately remedy the situation created by Complainant and his counsel. Not only did Complainant forestall the taking of his deposition, he essentially precluded Respondent from pursuing any discoverable evidence that arose out of his deposition, most notably the recordings of conversations and voicemail messages that Complainant made but did not produce. Therefore,

   IT IS RECOMMENDED that Mark E. Howick's complaint be dismissed.

      THOMAS F. PHALEN, JR.
      Administrative Law Judge

NOTICE: This Recommended Order of Dismissal and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, N.W., Washington, D.C. 202l0. See 29 C.F.R. §§ 1978.l09(a); 6l Fed. Reg. l9978 (l996). Pursuant to 29 C.F.R. § 1978.109(c)(2), the parties may file with the Administrative Review Board briefs in support of or opposition to the above-signed's decision and order within thirty days of the issuance of that decision unless the Administrative Review Board, upon notice to the parties, establishes a different briefing schedule.