U.S. Department of Labor
Office of Administrative Law Judges
50 Fremont Street, Suite 2100
San Francisco, CA 94105
DATE: May 29, 1998
CASE NUMBER 97-CAA-12
In the Matter of
ERIC MUNZ, LINDA CLARK
and MARK DUNCAN,
COMPLAINANTS,
v.
SACRAMENTO METROPOLITAN AIR QUALITY
MANAGEMENT DISTRICT,
RESPONDENT.
RECOMMENDED DECISION AND ORDER DISMISSING
COMPLAINT
The above-captioned matter involves a complaint filed with the Secretary of
Labor on April 5, 1997 under section 322 of the Clean Air Act, 42 U.S.C. §7622, by the three
above-captioned Complainants. A trial on the merits of the complaint commenced on November
3, 1997 and was recessed on November 7, 1997 after the receipt of five days of testimony.
Thereafter, the trial was scheduled to resume in Sacramento, California, at 9:00 a.m. on February
17, 1998.
At approximately 7:00 a.m. on the morning of February 17, 1998 Complainant
Clark faxed a 19-page letter and 21 pages of various other documents to the San Francisco office of
the undersigned administrative law judge. In the letter, Complainant Clark asserted that John
1During early February, Complainant
Munz and the Respondent entered into a proposed settlement agreement and, therefore, when the
trial resumed on February 17, only the complaints of Complainants Duncan and Clark were still in
issue.
2The materials provided by Mr.
Simonson are identical to the documents faxed to San Francisco except for the cover sheets and the
markings showing when the materials had been faxed.
3Effective on March 11, 1998, this
provision was recodified at 29 C.F.R. §24.6(e)(4)(i)(A) and (B). See 63 Fed. Reg. 6614
etseq. (Feb. 9, 1998).
4 This document is hereby admitted
into evidence as ALJX 5.
5This document is hereby admitted
into evidence as ALJX 6. Due to a clerical error the letter is dated March 26, instead of the date it
was actually prepared: March 25.
6A memorandum memorializing this
attempt to call Complainant Clark is hereby admitted into evidence as ALJX 7.
7Although there was a last minute
change in the conference room in which the trial was being held, a notice of this change was
prominently posted on the door of the originally scheduled conference room.
8SeeAnderson v.
Sheppard, 856 F.2d 741, 747-48 (6th Cir. 1988)(noting that although there are similarities, the
right to counsel in civil cases is a different and lesser right than the right to counsel conferred on
defendants in criminal cases).
9It is noted in this regard that even
though Mr. Simonson has been granted leave to withdraw as counsel for Complainant Clark, he
would still need to attend any further testimony by Complainant Clark in order to be present while
she is being questioned concerning her allegation that Complainant Duncan was contemplating lying
under oath in this proceeding.
10Although there are surely many
competent court reporters who reside in Sacramento, the court reporting service having the contract
to report Department of Labor trials in the western United States decided to assign a Tucson area
reporter to this case, possibly because of contractual restrictions on subcontracting.
11It is noted in this regard that in
November of 1997 Complainant Clark asserted that she needed more time to find an attorney when
seeking a last minute postponement of a related arbitration proceeding. In denying this request, the
arbitrator noted that Complainant Clark had not come forward with any evidence to demonstrate that
she had made a diligent effort to find a new attorney during the three and one-half month period
between the withdrawal of her prior attorney and the scheduled date of the arbitration proceeding.
RX 15 at 2.
12In this regard, it noted that
Complainant Clark's supervisor credibly testified that she had decided to recommend termination
of Complainant Clark's employment even before learning of her whistleblowing activities. Tr. at
1347.
13SeeUnited States
v. Studley, 783 F.2d 934 (9th Cir. 1986) (approving denial of continuance where the trial had
already been continued several times and the defendant "would not have obtained counsel even
had the continuance been granted"); United States v. Leavitt, 608 F.2d 1290, 1293-94 (9th Cir. 1979) (approving denial of continuance where there were scheduling difficulties, one
prior continuance, and a failure to provide adequate justification for not retaining counsel earlier);
United States v. Hull, 792 F.2d 941, 943 (9th Cir. 1986) (approving denial of continuance
where only one day before trial the defendant sought to replace an attorney the trial court
characterized as "very fine"); United States v. Cole, 988 F.2d 681, 683-84 (7th
Cir. 1993) (holding that where existing counsel was "making adequate progress toward
trial," the trial court was " not required to allow a last minute change in counsel to
disrupt its schedule.'"); United States v. Lustig, 555 F.2d 737, 744 (9th Cir. 1977)
(holding that is was not an abuse of discretion to deny a defendant a continuance to obtain a new
attorney when the continuance request was not made until four days before trial and the defendant
had been told by the trial judge over a month before the trial date to either "make
arrangements" with his existing attorney or obtain a new counsel); United States v.
Kelm, 827 F.2d 1319, 1322 (9th Cir. 1987) (approving denial of continuance where record
demonstrated that the defendant was "manipulating his constitutional right to counsel in an
effort to effect delay," and holding that "[w]here a defendant's conduct is dilatory and
hinders the efficient administration of justice,' a court may deny continuance even if it results in the
defendant's being unrepresented at trial"). SeealsoUngar v.
Sarafite, 376 U.S. 575, 589 (1964); Grunewald v. Missouri Pacific Railroad Co., 331
F.2 983 (8th Cir. 1964).
14In this regard, it is noted that the
provisions of 20 C.F.R. §18.28(b) require that requests for continuances be filed at least 14
days prior to a scheduled hearing date except when good cause for a continuance does not first arise
until after the 14 day deadline has already passed.
