DATE: June 26, 1996
CASE NO. 91-ERA-12
IN THE MATTER OF
DOUGLAS E. BILLINGS,
PLAINTIFF,
v.
TENNESSEE VALLEY AUTHORITY,
DEFENDANT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER OF DISMISSAL
Before the Administrative Review Board (ARB) for review are
the January 9, 1991 [Recommended] Order of Dismissal (R.O.), the
January 9, 1991 Order denying recusal or remand to the Wage and
Hour Division of the U.S. Department Of Labor for further
investigation, and the June 19, 1992 Recommended Decision and
Order on Remand (Remand Decision) of the Administrative Law Judge
(ALJ) under the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988), and regulations at 29 C.F.R.
Part 24 (1995).[1] We agree with the ALJ's refusal to recuse
himself or remand the case to the Wage and Hour Division and his
recommendations that the complaint be dismissed with
prejudice.[2] BACKGROUND
On August 18, 1990, Douglas E. Billings (Billings) filed an
ERA complaint with the Office of the Administrator, Wage and Hour
Division, which stated, in pertinent part:
The identified persons [[3] ] have conspired to deprive
[PAGE 2]
Douglas E. Billings of [workers' compensation] benefits as
afforded under Title 5 U.S.C. § 8101-8151 [the Federal
Employees' Compensation Act (FECA)]. In doing so the persons
named have caused Douglas Billings to suffer great mental and
physical stress.
On August 2, 1990, Douglas Billings became aware that
the Tennessee Valley Authority through their Inspector
Generals [sic] Office had contacted the Office of
Workers' Compensation Programs [OWCP] [sic] Chief of
Claims in Jacksonville, Florida.
Mr. George T. Prosser for the IG's office begged the
Chief of Claims to terminate Douglas Billings [sic]
compensation payments that he was receiving for
permanent total disability.
Mr. Bennett, the Chief of Claims co-operated [sic] and
terminated Douglas Billings [sic] benefits illegally.
The District Director of the Nashville office of the Wage and
Hour Division notified Billings on November 26, 1990 that its
investigation "did not verify that discrimination [under] the
statute could be substantiated for the following reasons: Our
investigation revealed no evidence that the efforts by TVA to
reduce and/or terminate your OWCP payments were due to
discrimination under the ERA. TVA had an obligation to notify
OWCP of possible improper payments." Billings appealed this
finding by requesting a hearing before an ALJ.
The ALJ issued an Order denying Billings' request for
recusal or remand to the Wage and Hour Division and a R. O.
dismissing the case with prejudice. The ALJ's dismissal of
Billings' complaint was based upon the following reasons:
1. The basis of the complaint concerns contacts and
discussions between TVA employees and other officials
which come within First Amendment protections.
2. The basis of the complaint was previously litigated
in Nos. 89-ERA-16 and 90-ERA-18. These two complaints
were previously litigated and the complaints dismissed
[by the same ALJ in the instant case]. [[4] ] Any
further litigation of these same complaints is barred
by the principle of res judicata.
3. The Plaintiff has failed to comply with an Order
directing him to file a prehearing statement on or
before December 28, 1990. The Order provided notice to
[PAGE 3]
the parties that failure to comply may result in dismissal
of the proceeding. The plaintiff has ignored the Order
since he has not filed a prehearing statement or requested
an extension of time for compliance.
R. O. at 2.
The Secretary's Order of Remand, Apr. 9, 1992, found that
the ALJ's notice of possible dismissal in his Notice of Hearing
and Prehearing Order was inconsistent with the procedure in ERA
regulations at 29 C.F.R. § 24.5(e)(4), which provides that
an ALJ's dismissal of a claim requires a prior "order to show
cause why the dismissal should not be granted and afford all
parties a reasonable time to respond to such order." Upon remand
to the ALJ for compliance with 29 C.F.R. § 24.5(e)(4), the
ALJ's Remand Decision, June 19, 1992, reaffirmed his previous R. O. and stated
in pertinent part:
I have reviewed the Plaintiff's response to the Show
Cause Order and find that his response is not
sufficient to prevent dismissal of this case.
Plaintiff has given no reason for his failure to
respond to the Prehearing Order and I find that this
fact alone is sufficient cause for dismissal of his
complaint. Additionally, the basis of his complaint
was the subject of the complaints in 89-ERA-16 and
90-ERA-18 and further litigation is barred by the
principle of res judicata. Further, the basis of the
complaint concerns contacts and discussions between TVA
employees and other officials which come within First
Amendment protections.
Remand Decision at 2.
DISCUSSION
I. Recusal or Remand to Wage and Hour Division for Further
Investigation
We agree with the ALJ's Order denying recusal. Id.
at 2; 29 C.F.R. § 18.31. Billings' recusal motion never
demonstrated that the ALJ "ha[d] a personal bias or prejudice
either against him or in favor of any adverse party," 28 U.S.C.
§ 144, or that "his impartiality might reasonably be
questioned," 28 U.S.C. § 455(a), or that "he ha[d] a
personal bias or prejudice concerning a party," 28 U.S.C. §
455(b)(1).
Under 28 U.S.C. § 144, a judge is presumed to be
impartial, and a substantial burden is imposed on the requesting
party to prove otherwise. Bin-Wahad v. Coughlin, 853
F.Supp. 680, 683 (S.D.N.Y. 1994); Holt v. KMI Continental,
Inc., 821 F.Supp. 846, 847 (D. Conn. 1993); U.S. v. Fiat
Motors of North America, Inc.,
[PAGE 4]
512 F.Supp. 247, 251 (D.D.C. 1981); U.S. v. Mitchell, 377
F.Supp. 1312, 1316 (D.D.C. 1974), aff'd sub nom. U.S. v.
Haldeman, 559 F.2d 31, 129-36 (D.C. Cir. 1976), cert.
denied sub nom. Mitchell v. U.S., 431 U.S. 933 (1977).
Billings' recusal motion is based on allegations that the
ALJ "has shown in the past ERA actions before him, that he does
not intend to grant Billings Equal Access to Justice as he is
allowed under the Equal Access to Justice Act." Id. at 1-
2. Absent specific allegations of personal bias or prejudice,
neither prior adverse rulings of a judge nor his participation in
a related or prior proceeding are sufficient for recusal under
28 U.S.C. § 144. U.S. v. Merkt, 794 F.2d 950, 960-61
(5th Cir. 1986), cert. denied, 480 U.S. 946 (1987);
Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1981);
Verone v. Taconic Telephone Corp., 826 F.Supp. 632, 634-35
(N.D.N.Y. 1993); Bumpus v. Uniroyal Tire Co., 385 F.Supp.
711, 713-14 (E.D. Pa. 1974). Adverse rulings in previous
proceedings, whether correct or erroneous, involving the same
judge and the party requesting recusal, are an insufficient basis
for recusal. Barnes v. U.S., 241 F.2d 252, 254 (9th Cir.
1956); Travelers Insurance Co. v. St. Jude Medical Office
Bldg., Ltd. Partnership, 843 F.Supp. 138, 141-44 (E.D. La.
1994); Crider v. Keohane, 484 F.Supp. 13, 15 (W.D. Okl.
1979); Duplan Corp. v. Deering Milliken, Inc., 400 F.Supp.
497, 513-18 (D.S.C. 1975); U.S. v. Partin, 312 F.Supp.
1355, 1358 (E.D. La. 1970).
Similarly, under 28 U.S.C. § 455(a), opinions held by
judges as a result of what they learned in earlier proceedings
are not bias or prejudice requiring recusal, and it is normal and
proper for a judge to sit in the same case upon remand and
successive trials involving the same defendant. Liteky v.
U.S., 114 S.Ct. 1147, 1157-58 (1994); In Re International
Business Machines Corp., 45 F.3d 641, 643-44 (2nd Cir. 1995).
The source of the appearance of partiality must arise from
something other than the judge's mere involvement in previous
cases concerning the parties in the present case. U.S. v.
Morris, 988 F.2d 1335, 1337 (4th Cir. 1993); Meyer v.
Oppenheimer Management Corp., 709 F. Supp. 67, 68-69
(S.D.N.Y. 1989).
Accordingly, we agree with the ALJ's order denying recusal
since he properly found that Billings "merely recites allegations
and complaints from previous cases [involving Billings and the
same ALJ in this case] and has not shown nor demonstrated any
facts which would tend to show bias or prejudice, personal or
otherwise, against the plaintiff or in favor of an adverse
party." Id. at 2. Billings v. TVA, Case Nos. 89-
ERA-16 et seq., Sec. Fin. Dec. and Ord., July 29, 1992,
slip op. at 2-3 (upholding this ALJ's denial of recusal in other
cases brought by
[PAGE 5]
Billings against TVA), review denied sub nom. Billings v.
Reichand TVA, 25 F.3d 1047 (6th Cir. 1994).
See n.4, supra.
We also agree with the ALJ's holding that "plaintiff's
alternative request for remand [to the Wage and Hour Division for
further investigation] must also be denied as he has not shown
any legitimate reason why a remand is necessary." Id. at
2. Billings' recusal and remand motion did not demonstrate that
the Wage-Hour investigation was inconsistent with appropriate
investigatory procedures. See 29 C.F.R. § 24.4. Rather,
his remand request attacked the merits of Wage-Hour's findings of
nondiscrimination in his case, arguing that "the Wage and Hour
Division did not name the Employee's [sic] Compensation Appeals
Board and the Secretary of Labor as co-conspirators with TVA and
OWCP in the withholding of benefits and due process of law."
Id. at 2.
Wage-Hour's findings were not binding on Billings since the
regulations accorded him a right to a de novo hearing on
the merits of his complaint, including providing testimony from
his own witnesses and documentary evidence in support of his
allegations. 29 C.F.R. §§ 24.4-24.5. Accordingly, any
arguable flaws in Wage-Hour's investigation[5] or findings would
not adversely affect litigation of his case before the ALJ.
Smith v. TVA, Case No. 87-ERA-20, Sec. Fin. Ord. of Dism.,
Apr. 27, 1990, slip op. at 4 n.2.
II. Dismissal for Failure to Respond to Prehearing Order
The ALJ's April 16, 1992 Order to Show Cause, issued
pursuant to the Secretary's Order of Remand, ordered the parties
to "SHOW CAUSE . . . why the . . . case should not be dismissed
due to the failure of the Plaintiff . . . to comply with the
prehearing order dated December 12, 1990. . . ." That Notice of
Hearing and Prehearing Order required the parties to submit to
the ALJ and to each other:
(a) A statement of the issues to be decided with
citation of relevant case law and applicable provisions
of law;
(b) The name and address of each witness the party
expects to call with a summary of the testimony each
witness is expected to furnish and an estimate as to
the length of time his testimony will take;
(c) A joint stipulation of facts and documents
which are not in dispute.
(d) A list of all documents which the party
expects to introduce as evidence with a copy of each
[PAGE 6]
document when possible;
(e) All preliminary motions and a statement of
objections expected to be made to any proposed
exhibits; and
(f) An estimate as to the length of time required
for hearing.
Id. at 1-2.
We agree with the ALJ's Remand Decision that Billings'
May 13, 1992 Response to [the] Order to Show Cause "has given no
reason for his failure to respond to the Prehearing Order and
. . . [I] find that this fact alone is sufficient cause for
dismissal of his complaint." Id. at 2. Billings'
response avoids the issue completely, arguing instead that the
ALJ "does not want Plaintiff . . . to have the opportunity to be
allowed to have the same Fifth and Fourteenth Amendment Rights .
. . as all other Plaintiff's [sic] who have brought actions
against TVA have because he does not and cannot afford an
Attorney to pursue this action." Billings goes on to request
that "the case be remanded back to the Wage and Hour Division for
a Proper [sic] investigation of the facts." Id. at
1-2 (emphasis in original).[6]
Billings' response to the show-cause order does not deny
that he failed to comply with the ALJ's prehearing order.
Accordingly, the ALJ's dismissal of this complaint with prejudice
was proper pursuant to 29 C.F.R. § 24.5(e)(4)(i)(B).
Cummings v. Pinkerton's, Inc., Case No. 87-ERA-16, Sec.
Ord., Sept. 23, 1994, slip op. at 2; Billings v. Bechtel
Group, Bowater Southern Paper Corp., Case No. 89-ERA-45, Sec.
Fin. Ord. of Dism., Jan. 24, 1994, slip op. at 2; Billings v.
TVA, Case Nos. 89-ERA-16 et seq., Sec. Fin. Dec. and
Ord., July 29, 1992, slip op. at 3-5, review denied, 25
F.3d 1047 (6th Cir. 1994); and cases cited.[7] See Link v.
Wabash Railroad Co., 370 U.S. 626, 629-36 (1962); Morris
v. Morgan Stanley & Co., 942 F.2d 648, 651-52 (9th Cir.
1991); Kadin Corp. v. U.S., 782 F.2d 175, 176-77 (Fed.
Cir. 1986); Rohauer v. Eastin-Phelan Corp., 499 F.2d 120,
121-22 (8th Cir. 1974) (judicial discretion to dismiss cases for
failure to follow court orders).
III. TVA Communicatons with OWCP
Billings' complaint objects to contacts and communications
between TVA and OWCP resulting in the terminaton of his FECA
benefits. As explained in TVA's Dec. 28, 1990 response to the
ALJ's Dec. 12, 1990 prehearing order:
The sole factual issue for resolution in this case is
[PAGE 7]
whether TVA illegally and discriminatorily persuaded OWCP to
terminate Billings' FECA benefits. TVA's position is that its
actions were constitutionally protected and for the legitimate
business purpose of terminating overpayments and investigating
potential fraud against the Government. In 1988, as a part of a
routine review by TVA of OWCP's charges for benefits paid, TVA
became aware that it was being charged improperly for two monthly
benefit payments to complainant, one a total disability payment
and the other a partial disability payment. During the hearing
in No. 87-ERA-5, complainant voluntarily disclosed that while
collecting both disability payments he also had other employment.
Because complainant had indicated that he had returned to work,
and because he was also receiving two monthly benefit checks,
neither of which was being reduced on account of his earnings,
TVA's Office of Inspector General (OIG) investigated the matter
and confirmed that complainant was indeed working for Bechtel
Construction Company, Inc., as an operating engineer with
earnings at a rate of $20,000 per year. When the matter was
brought to OWCP's attention, it correctly terminated
complainant's disability payments. Complainant has not yet made
repayment for the overpayments which he received.
Id. at 6. See n.3 involving Billings' related ECAB
case.
We agree with the ALJ that TVA's actions in communicating
with OWCP in an attempt to have Billings' eligibility for FECA
benefits reviewed did not violate the ERA. Remand Decision at 2;
R. O. at 2. TVA's actions were specifically authorized by FECA
regulations, which provide, in pertinent part:
[T]he employing agency may . . . investigate the
circumstances surrounding an injury to an employee and
the extent of disability (e.g., an agency may
investigate an employee's activities where it appears
the employee alleging total disability may be
performing other employment or may be engaging in
activities which would indicate less than total
disability). Further, the agency has the
responsibility to submit to the Office at any time all
relevant and probative factual and medical evidence in
its possession or which it may acquire through
investigation or other means. All evidence
submitted will be considered and acted upon by the
Office as appropriate, and the Office will inform
theclaimant, the claimant's representative and the
employing agency of such action. . . .
20 C.F.R. § 10.140 (1988)(emphasis added). See Howard v.
TVA, Case No. 90-ERA-24, Sec. Fin. Dec. and Ord. of Dism.,
July 3,
[PAGE 8]
1991, slip op. at 5 n.5, aff'd sub nom. Howard v. U.S. Dept.
of Labor, 959 F.2d 234 (6th Cir. 1992)(without published
opinion), motion for leave to proceed informa
pauperis denied, 113 S.Ct. 593 (1992).[8]
Billings is attempting to improperly circumvent the
preclusive and binding effects of his adverse OWCP and ECAB
rulings under the FECA[9] through this separate and unauthorized
action in a matter exclusively within the purview of the FECA.
5 U.S.C. §§ 8116(c) and 8128(b) (1988). See
Billings v. OWCP, Case No. 91-ERA-0035, Sec. Fin. Dec. and
Ord., Sept. 24, 1991, slip op. at 1-2 (dismissal of case against
OWCP claims examiner for allegedly denying workers' compensation
based on injuries allegedly suffered while working at TVA),
appeal dismissed sub nom. Billings v. Dole and TVA, 956
F.2d 268 (6th Cir. 1992) (without published opinion).
IV. Res Judicata as Bar to this Claim
The law of res judicata is applicable to
administrative proceedings when an agency is acting in a judicial
capacity. Astoria Federal Savings & Loan Assn. v.
Solimino, 501 U.S. 104, 107-08 (1991); University of
Tennessee v. Elliott, 478 U.S. 788, 798 (1986); U.S. v.
Utah Construction & Mining Co., 384 U.S. 394, 421-22 (1966);
Norman v. Niagara Mohawk Power Corp., 873 F.2d 634, 638
(2nd Cir. 1989); McCuin v. Secretary of Health and Human
Services, 817 F.2d 161, 171-72 (1st Cir. 1987); Barnes v.
Oody, 514 F.Supp. 23, 25 (E.D. Tenn. 1981); see Stites v.
Houston Lighting & Power Co., Case No. 87-ERA-41, Sec. Ord.
of Dism., Sept. 29, 1989, slip op. at 3. Under the doctrine of
res judicata, a judgment on the merits in a prior suit
bars a second suit involving the same parties based on the same
cause of action. Parklane Hosiery Co. v. Shore, 439 U.S.
322, 326 n.5 (1979). The judgment precludes the parties from
relitigating issues that were or could have been raised in that
action. Federated Department Stores, Inc. v. Moitie, 452
U.S. 394, 398 (1981); Brown v. Felsen, 442 U.S. 127, 139
n.10 (1979); Commissioner v. Sunnen, 333 U.S. 591, 597
(1948).
The Remand Decision stated that dismissal was justified
because "the basis of [Billings'] complaint was the subject of
the complaints in 89-ERA-16 and 90-ERA-18 and further litigation
is barred by the principle of res judicata." Id. at 2.
This was a reaffirmation of the ALJ's previous R. O. at 2. The
ALJ is correct that his prior decisions in Billings v.
TVA, Case Nos. 89-ERA-16 et seq., R. D. and O., Nov.
1, 1990, raised the same FECA issues vis-a-vis Billings,
TVA and OWCP presented in this separate proceeding. Id.
at 1-2, 3 n.1. Although the substance of these FECA-related
issues was not specifically litigated in those prior consolidated
cases, the R. D. and O. therein constitutes a judgment on the
merits for res judicata purposes. That R. D. and O. was
issued pursuant to FED. R. CIV. P. 41(b)[10] for failure to
comply with the ALJ's prehearing orders, id. at 7, was
subsequently affirmed by the Secretary, and Billings was denied
review by the court of appeals. See n.4. A dismissal
order issued under Rule 41(b) "operates as an adjudication upon
the merits" unless the dismissal order specifies otherwise.[11]
Therefore, this action is barred by the doctrine of res
judicata. Proctor v. Millar Elevator Service Co., 8
F.3d 824, 824-25 (D.C. Cir. 1993); Shoup v. Bell & Howell
Co., 872 F.2d 1178, 1179-80 (4th Cir. 1989).
ORDER
For the foregoing reasons, the complaint in this case is
dismissed with prejudice.
SO ORDERED.
David A. O'Brien, Chair
Karl J. Sandstrom, Member
Joyce D. Miller, Alt. Member
Washington, D.C.
[ENDNOTES]
[1] Secretary of Labor's Order 2-96 delegates to the newly
established Administrative Review Board (ARB) jurisdiction to
issue final agency decisions under this statute and these
regulations, which have been amended to conform to the
Secretary's Order. 61 Fed. Reg. 19,978-79 and 19,982-89 (May 3,
1996) (copy attached). The ARB has reviewed the interim decision
of the Secretary, discussed infra, and reviewed the entire
record in this case in rendering this final decision.
[2] Subsequent to the filing of briefs by Douglas E. Billings
and the Tennessee Valley Authority (TVA) in response to the
Secretary's briefing order under the former final adjudicatory
procedure (see n.1), Karen Billings filed a motion to be
substituted as the representative of her deceased husband. This
motion is granted, 29 C.F.R. § 18.1(a), FED. R. CIV. P.
25(a), although the motion to substitute is arguably moot because
our decision herein upholds the ALJ's various decisions and
orders. In any event, we have retained the name of the original
plaintiff in the case caption for clarity, continuity, and ready
reference.
[3] Billings' complaint named various TVA and OWCP employees,
members of the Employees' Compensation Appeals Board (ECAB), and
"Others not yet discovered." Billings' complaint is related to
an ECAB proceeding captioned, In the Matter of Billings and
TVA, Watts Bar Nuclear Plant, No. 88-1172 and 89-855, ECAB
decision and remand order to OWCP, Aug. 7, 1990, slip op. at 8-9,
14. This ECAB decision was not specifically mentioned in his
complaint.
[4] The ALJ's res judicata holding was predicated on his
Nov. 1, 1990 Recommended Decision and Order (R. D. and O.) of
dismissal for failure to comply with his pretrial orders and
failure to prosecute in Billings v. TVA, Case Nos. 89-ERA-
16 and 90-ERA-18. See Billings v. TVA, Case Nos. 89-ERA-
16, 89-ERA-25, 90-ERA-2, 90-ERA-8, 90-ERA-18, Sec. Ord. of Rem.,
Jan. 9, 1992, for compliance with show-cause procedural
requirements at 29 C.F.R.
§ 24.5(e)(4). The ALJ's subsequent Remand Decision, Feb.
26, 1992, reaffirming his prior R. D. and O, was upheld by the
Secretary in Billings v. TVA, Case Nos. 89-ERA-16 et.
seq., Sec. Fin. Dec. and Ord., July 29, 1992 (also holding no
basis for ALJ recusal), slip op. at 7, review denied sub nom.
Billings v. Reich and TVA, 25 F. 3d 1047 (6th Cir. 1994)
(without published opinion).
[5] Subsequent to the ALJ's order denying recusal or remand to
the Wage and Hour Division, Billings' May 13, 1992 Response to
Order to Show Cause first raised the issue of the adequacy of
Wage-Hour's investigation. Id. at 1-2. Billings' Aug.
10, 1992 brief to the Secretary concerning the ALJ's Remand
Decision also raised the issue of the adequacy of the
investigation but only requested that the ALJ's decision "be
Remanded back to the Administrative Law Judges' Offices [sic] for
reassignment to another Administrative Law Judge for hearings in
the matter." Id. at
5-6. As explained above, any arguable flaws in the investigation
would not adversely affect his hearing rights.
[6] Billings' response to the show-cause order also urged that
"the case [be] held off" because of the poor state of his health,
as reflected in "[a] statement from [his] Cardiologist . . . as
well as other medical rationale," submitted to the ALJ.
Id. at 1-2. The ALJ is correct in finding that "the
Plaintiff did not file a letter from his cardiologist or any
other medical rationale' in this case as alleged." Remand
Decision at 2.
[7] See Rowland v. Easy Rest Bedding, Inc., Case No. 93-
STA-19, Sec. Fin. Dec. and Ord., Apr. 10, 1995, slip op. at 1;
White v. "Q" Trucking Co., Alliance Trucking and Employment
Services of Michigan, Case No. 93-STA-28, Sec. Fin. Dec. and
Ord., Dec. 2, 1994, slip op. at 2 (similar cases under employee
protection provisions of the Surface Transportation Assistance
Act,
49 U.S.C.A. § 31105 (1994)).
[8] Since TVA's actions were in accordance with FECA
regulations, it is unecessary to determine whether they "come
within First Amendment protections," as the ALJ held. Remand
Decision at 2; R. O. at 2. See Queen v. TVA, 508 F.Supp.
532, 536 (E.D. Tenn. 1980), aff'd, 689 F.2d 80, 86 (6th
Cir. 1982), cert. denied, 460 U.S. 1082 (1983), concerning
TVA's First Amendment argument in this case.
[9] See n.3 supra and surrounding text.
[10] See 29 C.F.R. §§ 18.1(a) and 18.29(a)(8).
[11] It is irrelevant under Rule 41(b) that the ALJ's orders in
those consolidated cases were issued sua sponte.
Costello v. U.S., 365 U.S. 265, 286-87 (1961); Carter
v. City of Memphis, Tennessee, 636 F.2d 159, 161 (6th Cir.
1980) (citing Link v. Wabash Railroad Co., 370 U.S. 626
(1962)); Billings v. TVA, Case Nos. 89-ERA-16 et
seq., R. D. and O. at 7.
