ARB Case No. 99-012
ALJ Case No. 98-ERA-33
DATE: September 13, 2000
In the Matter of:
THOMAS MASTRIANNA,
COMPLAINANT,
v.
NORTHEAST UTILITIES CORPORATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances: For the Complainant: Robert W. Heagney, Esq.,
 Gilman & Marks, Hartford, Connecticut
For the Respondent: Charles C. Thebaud, Jr., Esq.; Paul J. Zaffuts, Esq.; Goran P. Stojkovich,
Esq., Morgan, Lewis, & Bockius, LLP, Washington, D.C.
ORDER OF DISMISSAL
On October 26, 1998, an Administrative Law Judge (ALJ) issued a
Recommended Decision and Order Dismissing Claim With Prejudice (R.D.&O.) in this case
which arises under the employee protection provisions of the Energy Reorganization Act of
1974, as amended, 42 U.S.C. §5851 (1994). The ALJ recommended dismissing
Complainant Thomas Mastrianna's claim because he failed to file it within 180 days of the
allegedly discriminatory act as required by 42 U.S.C. §5851(b)(1).
[Page 2]
On November 5, 1998, the Administrative Review Board (Board) received
Mastrianna's petition for review of the ALJ's R.D.&O. The Board issued a Notice of Appeal and
Order Establishing Briefing Schedule giving Mastrianna until December 17, 1999, to file his
initial brief. On December 16, 1998, the Board received Mastrianna's motion for a 60-day
continuance, which was granted. Under the amended briefing schedule, Mastrianna's initial brief
was due on or before February 17, 1999.
On March 4, 1999, the Board received Respondent Northeast Utilities
Corporation's (Northeast) Motion to Dismiss Mastrianna's claim because Mastrianna had failed
to file his initial brief. On March 8, 1999, the Board received another motion for continuance
from Mastrianna. Northeast filed a motion in opposition on March 10, 1999. The Board
scheduled a teleconference for March 19, 1999. Although Mastrianna's attorney received notice
of this teleconference, he did not participate.
On March 23, 1999, the Board denied Mastrianna's March 8, 1999 Motion
for Continuance. The Board declined to rule on Northeast's motion to dismiss and gave
Northeast until April 20, 1999, to file a statement in support of the ALJ's R.D.&O., if it chose
to do so. The Board gave Mastrianna until May 7, 1999, to file a rebuttal brief exclusively
responsive to any issue raised by Northeast in its statement in support of the ALJ's R.D.&O. The
Board also permitted Mastrianna to file a brief in opposition to Northeast's motion to dismiss by
May 7, 1999.
Northeast declined to file a brief before the Board and, on April 2, 1999,
again urged the Board to dismiss Mastrianna's claim. Northeast also asked the Board to
reconsider its Order granting Mastrianna until May 7, 1999, to file an opposition to the Motion
to Dismiss. Mastrianna filed neither a rebuttal brief nor an opposition to Northeast's Motion to
Dismiss. Instead, on April 22, 1999, Mastrianna filed a response to Northeast's reconsideration
request noting "the Statement of Northeast Nuclear Energy Company dated April 2, 1999
should be disregarded by the ARB, and the Response date of May 7, 1999 for council [sic] for
Mr. Mastrianna should be maintained." Mastrianna filed nothing further.
Courts possess the "inherent power" to dismiss a case for lack
of prosecution. Link v. Wabash R.R., 370 U.S. 626, 630 (1962). This power is
"governed not by rule or statute but by the control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and expeditious disposition of cases."
Id. at 630-31. Accord Tri-Gem's Builders, Inc., ARB Case No. 99-117, Order
of Dismissal (Feb. 25, 2000). Like courts, this Board necessarily must manage its docket in an
effort to "achieve the orderly and expeditious disposition of cases." Thus, given
Mastrianna's unexplained failure to submit a brief, notwithstanding the Board's every effort to
allow him sufficient time to do so, we find that he has failed to prosecute his petition for review
[Page 3]
of the ALJ's R.D.&O. Accordingly, we DISMISS Mastrianna's petition for review.1
1 Because we dismiss Mastrianna's petition
for review, the ALJ's R.D.&O. becomes the final order of the Secretary pursuant to 29 C.F.R.
§24.7(d). In light of this, Northeast's Motion to Dismiss is moot.