Beliveau Naval Undersea Warfare, 1997-SDW-6 (ALJ Apr. 19, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 565-5330 (202) 565-5325 (FAX)

Date: April 19, 2000
Case No. 1997-SDW-0006

IN THE MATTER OF

JOHN J. BELIVEAU, JR.
    Complainant

   v.

NAVAL UNDERSEA WARFARE
CENTER
    Respondent

   On March 16, 2000, I issued an order in which I found that the respondent had failed to comply with an earlier Order Compelling Discovery. I denied complainant's motion for a default judgment, finding it too draconian a remedy at this preliminary stage of the proceeding but, inter alia, I invited the complainant to file a petition for his costs, including attorneys' fees, caused by respondent's failure to comply with the Order Compelling Discovery.

   In response to this order, complainant filed a petition for attorneys' fees in the amount of $1330.00 for the services of his co-counsel caused by respondent's failure to comply with the discovery order. Respondent does not challenge the reasonableness of complainant's attorneys' fee petition. However, respondent contends that "any grant of monetary sanctions would exceed the authority of the Administrative Law Judge." Respondent argues that Rule 37(b)(2) of the Federal Rules of Civil Procedure, which provides for an award of expenses, including attorneys' fees, generated by an adverse party's failure to comply with a discovery order, is inapplicable to this proceeding. Rather, respondent contends that in accordance with §18.1(a) of this Office's Rules of Practice and Procedure, 29 C.F.R. Part 18, since §18.6(d)(2) also governs sanctions for failure to comply with discovery orders, that subsection of the Office's Rules takes precedence over the related provision of the Federal Rules. And respondent argues that, under §18.6(d)(2), there is no authority to award fees and costs for a party's failure to comply with a discovery order.

   Assuming that §18.6(d)(2) preempts the application of Federal Rule 37(b)(2) to this proceeding, I nonetheless hold that awarding attorneys' fees and costs is a permissible sanction under that section of our Rules. Although §18.6(d)(2) does not specifically list an award of fees and costs as a sanction for the failure to comply with a discovery order, the sanctions listed in subparagraphs (i) to (v) of that subsection are not intended to be the exclusive sanctions available for a party's failure to comply with an administrative law judge's order. For §18.6(d)(2) states that "the administrative law judge ... may take such action in regard thereto [a party's failure to comply with an order] as is just, including but not limited to [subparagraphs (i) - (v)]." (Emphasis added) Therefore, the administrative law judge's authority in applying sanctions for a party's failure to comply with a discovery order is limited only by what is just, not to the specific sanctions listed in subsections (i) to (v) of §18.6(d)(2). It would be difficult to argue that an award of $1330.00 in attorney's fees is not just under the facts of this case, and respondent did not attempt to do so.

   Moreover, logic would dictate that if administrative law judges have the authority to order the ultimate sanction a default judgment against the party failing to comply with an order they also would have the authority to impose a much lesser sanction such as the award of fees and costs. In this case, that amounts to a relatively small sum $1330.00. It is in the interests of justice to permit administrative law judges to fashion the sanction that is most appropriate. In this case, at this stage in the proceeding, the most appropriate sanction is an award of complainant's expenses due to respondent's failure to comply with the discovery order.

   Respondent cites two decisions of the Secretary in support of its position, Krisik v. Latex Construction Co., 95-STA-23 (October 30, 1995), and Billings v. TVA, 89-ERA-16 et al. (July 29, 1992). However, neither of these cases is apposite. First, both cases involved petitions for costs to be assessed against pro se complainants, which clearly raises issues not encountered when the party at fault is represented by counsel. Second, in both cases, the party's failure to comply with the administrative law judge's order led to the ultimate sanction, dismissal of the claim. Since the cases had been dismissed, a further sanction of an award of costs would have been punitive.¹ Neither of these cases lead me to believe that administrative law judges do not have the authority to sanction a party for failing to comply with a discovery order by ordering that party to pay the opposing party's expenses, including attorneys' fees, caused by the failure to comply. Therefore,

   IT IS ORDERED that the respondent pay the following attorneys' fees for services to the complainant caused by respondent's failure to comply with the December 14, 1999 Order Compelling Discovery:

   1. To Sarah L. Levitt, $822.50; and

   2. To Richard E. Condit, $507.50.

      JEFFREY TURECK
      Administrative Law Judge

¹The Krisik case did not even involve discovery; rather, the complainant failed to appear at the hearing in his case. As the Secretary stated in declining to award costs to the respondent in Krisik:

There is nothing in the STAA which suggests that a complainant's abandonment of a claim holds him responsible for a respondent's costs incurred subsequent to abandonment, but prior to final dismissal of the complaint.

Krisik, supra, slip op at 2.