Ewald v. Commonwealth of Virginia Dept. of Waste Management, 1989-SDW-1 (ALJ Nov. 29, 2000)

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Ewald v. Commonwealth of Virginia Dept. of Waste Management, 1989-SDW-1 (ALJ Nov. 29, 2000)

U.S. Department of Labor Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002 DOL Seal

Date Issued: November 29, 2000
Case No. 1989-SDW-0001

In the Matter of

PAULINE M. EWALD
Complainant

COMMONWEALTH OF VIRGINIA
DEPARTMENT OF WASTE
MANAGEMENT
Respondent

ORDER DENYING MOTION TO WITHDRAW ORDER
AND
GRANTING TIME TO RESPOND TO
MOTION TO DISMISS

By Bill of Objection filed on November 21, 2000, the Commonwealth of Virginia complains that an order which issued in this matter on November 1, 2000, afforded it an opportunity to file documents in its possession which it deemed relevant in response to Complainant's Opposition to its Motion for Summary Judgment. While the Commonwealth was required and did resubmit a copy of its response to Complainant's Motion to Compel, its Senior Assistant Attorney General objected to the November 1, 2000, ruling because the Order also invited the Commonwealth to submit such additional information which it deemed relevant to its response to Complainant's Opposition to the Commonwealth's Motion for Summary Judgment. ¹

In rebuffing the opportunity to supplement the record, the Commonwealth's rather novel suggestion, that Ms. Ewald select and submit information the Commonwealth might deem relevant but has not identified, seems a bit incongruous. Customary practice would suggest that each party initially determine, in its own interest, what information it deems essential to a fair resolution of a pending issue and submit it for consideration. Thus, the November 1 Order, afforded the Commonwealth time to respond to the partial record reconstruction offered by Ms. Ewald.

At a hearing convened last July, the parties were advised that the ARB could not locate the record on appeal and that it would not be available in these proceedings. (See, Hearing Transcript, July 26, 2000). The parties were, therefore, consulted about the lost record and the need discussed that each, from time to time, assist in supplementing the existing record with pertinent information from the prior record. Both understood the nature of the problem and neither party objected to the proposed solution.

[Page 2]

The Commonwealth now mischaracterizes the November 1 Order. It did not, as Respondent contends, demand that the Commonwealth " reconstruct that file within 15 days" or reproduce "presumably the entire file."(Bill of Objection at 1-2, emphasis in original). The Order merely invited the Commonwealth to examine its files and forward such documents which it deemed responsive to Complainant's Opposition. In context, then, the basis for the Commonwealth's objection to the fairness of such a procedure is not readily discernable.

As the Commonwealth's counsel understood at the hearing, limited reconstruction of the record need only occur when a party deems it in its interest to do so or when it becomes necessary in rendering a fair decision. Thus, Complainant resubmitted her Motion to Compel as an appendix to her Opposition, and Respondent was granted an opportunity, and did resubmit its Response to her motion. The burden of reconstruction was mutual, and both parties have fully complied with the Order. Since the Commonwealth deemed nothing else relevant, it was entirely at liberty to decline to further supplement the record, and it exercised that option. Accordingly, Respondent's objection that the November 1 Order unfairly shifted the burden of production is without merit, and its request that it be withdrawn is moot.

The Commonwealth has also moved that the entire matter be dismissed as barred by the Eleventh Amendment. This motion is newly filed, and Complainant must be afforded an opportunity to respond. Therefore;

ORDER

IT IS ORDERED that the Commonwealth's request that the Order issued on November 1, 2000, be withdrawn be, and it hereby is, denied; and,

IT IS FURTHER ORDERED that Complainant be, and hereby is, granted until January 5, 2001, to respond to the Commonwealth's Motion to Dismiss.

STUART A. LEVIN
Administrative Law Judge

[ENDNOTES]

¹ Although the Commonwealth did not question the status of this matter at any time prior to the ARB's remand of the case on August 21, 2000, it now complains about the amount of time it was pending review on appeal in relation to the "alacrity" in the time limits I have imposed since the remand. It did not, however, request any extension of time. In the future, if either party finds a deadline unduly burdensome, a simple request for an extension of time, reasonably based, will ordinarily suffice to accommodate counsel's needs.