Date: February 1, 1995

Case No. 95-ERA-16

In the Matter of

RICHARD F. UDOVICH

   v.

HOUSTON LIGHTING AND POWER CO.

   On January 25, 1995, the subject complaint, which was filed in the office of the Wage & Hour Division on November 1, 1994, was duly noticed for hearing in Houston, Texas, on February 23, 1995, pursuant to the Federal employee protection provisions of the Water Pollution Control Act, 33 U.S.C. §1367, the Energy Reorganization Act of 1974, 42 U.S.C. §5851, and the applicable regulations at 29 C.F.R. Parts 18 and 24.

   Subsequent to the issuance of said Notice of Hearing, I have received: 1) Respondent's "Motion to Extend Time to Answer Discovery and Accompanying Motion for a Protective Order," dated January 27, 1995; 2) copies of Complainant's "Motion to Enter Onto Land of Respondent's South Texas Nuclear Plant for Inspection and to Take Photographs, Audio and Videotapes," "Request for Designation of Expert Employees for Depositions and Notice of Depositions," "First Request for Admissions," and "First Interrogatories and Associated First Request for Production of Documents to Respondent," all of which were served on Respondent on December 27, 1994; and 3) Complainant's "Response to Motion for Protective Order and First Motion to Compel Proper Discovery Answers," dated January 30, 1995.

   On January 31, 1995, a telephone conference with counsel for both parties was held during which counsel for complainant asserted his position that he would not waive the statutory and regulatory provisions regarding the time for the issuance of an order by the Secretary (i.e., within ninety days of the receipt of the complaint), see 42 U.S.C.A. §5851(b)(2)(A), 29 C.F.R. §24.6(b), and counsel for respondent asserted that they

had a pre-existing conflict for the February 23, 1995, date previously set for hearing. Also, both parties' counsel requested that the hearing site be moved to Bay City, Texas, which is about 90 miles from Houston and is where complainant and most other witnesses reside; respondent's counsel estimated that the trial will require about 4-5 days (complainant's counsel having stated, by letter dated January 30, 1995, that the case "might be tried in one day").

   Under the circumstances here presented, where complainant will not waive the short time frame for processing the complaint mandated by section 5851(b)(2)(A) of the statute and by the regulations at 29 C.F.R. §24.6(b), I am convinced that it would be inherently inconsistent to permit the very extensive discovery sought by complainant, because, based on my experience with such cases, the objections, responses and rulings that may reasonably be expected in connection with such discovery would double or triple the mandated elapsed time frames. It is noted that complainant's cited authority for the requested discovery is Part 18 of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges. See 29 C.F.R. §§18.19(a)(2), 18.19(b), 18.20, 18.22. The application of said rules, however, is limited: "to the extent that these rules may be inconsistent with a rule of special application as provided by statute, . . . or regulation, the latter is controlling." 29 C.F.R. §18.1 (a). And, indeed, here there are rules of special application provided by statute and regulation mandating that the complaint be processed within 90 days from filing to Secretary's Order. Moreover, consistent with the mandated speedy processing of complaints, the regulations for hearings under employee protection statutes do not mention discovery and do provide 1) for the setting of hearings within seven days of receipt and with as little as five days advance notice, 2) that formal rules of evidence shall not apply, 3) that post-hearing briefs will not be permitted unless requested by the judge, and 4) that the judge's decision must be rendered within 20 days of the hearing. See 29 C.F.R. §§24.5(a), 24.5(e)(1), 24.5(e)(3), 24.6(a). Finally, it is noted that the case cited by complainant's counsel during the telephone conference, Flor v. U. S. Department of Energy, Case No. 93-TSC-1 (December 9, 1994) is inapposite. In Flor, the Secretary remanded a case that had been decided on motion for summary dismissal because that complainant may have been denied access to information demonstrating the existence of a genuine issue for trial due to the moving party's failure to respond to discovery. The references to discovery are therefore only applicable to that context and do not, in my view, support the allowance of the discovery sought here, where there is no motion for summary dismissal and where complainant asserts the right to an order by the Secretary within 90 days (or as close as possible thereto) from the date of filing the complaint.

   In sum, complainant having filed his complaint on November 1, 1994, the statute and regulations provide that the Secretary's Order on the allegations contained in the complaint was due to be rendered by January 30, 1995, and it was, in my judgment, inherently inconsistent with such requirement to seek the type and extent of discovery sought by complainant on December 27, 1994, the responses to which were due February 2, 1995. Further, notwithstanding the fact that there is rarely, if ever, strict compliance with the 90-day provision, it is my view that as far as the role of the administrative law judge is concerned, the hearing on the complaint and recommended decision must be provided as soon as possible, see 29

C.F.R. §§24.5(a), 24.6(a), which dictates that where, as here, complainant is not prepared to waive the time frames of the statute and regulation, the parties must proceed to trial without access to discovery. Accordingly, complainant's motion to compel discovery is DENIED and respondent's motions to extend time to respond and for a protective order are DENIED as moot.

   Having considered the parties' positions regarding the conflict of schedule on February 23, 1995, the estimates of counsel regarding trial time and their request for hearing site, three days will be provided for the hearing, which is hereby rescheduled to commence at 9:00 a.m., February 28, 1995, at:

Complainant's cast will be presented on February 28 and one-half day on March 1, 1995; respondent's case will be presented on one-half day on March 1 and March 2, 1995.

   In order to facilitate the preparation and presentation of their respective cases in the time allocated for this matter, it is ORDERED that the parties shall:

   1. Consult with one another as soon as possible for the purposes of preparing stipulations of fact and narrowing of issues;

   2. Serve on each other not later than February 17, 1995: a) a statement of the issues to be presented for adjudication and points and authorities supporting their respective positions; b) a list of the names and addresses of each witness to be called to testify;¹ c) a brief summary of the testimony expected to be elicited from each witness; and d) copies of all exhibits to be offered at the hearing (all exhibits shall be appropriately marked for identification by the party offering them).

   3. Serve on the undersigned copies of the statements of issues, points and authorities, witness lists and summaries, but not the exhibits, which shall be presented at the time of trial.

SO ORDERED.

      ALFRED LINDEMAN
      Administrative Law Judge

AL:ms

¹If it is necessary in order to present their cases in the allotted time, counsel way agree to present the testimony of selected witnesses by deposition, provided that said depositions are completed not later than March 3, 1995.