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Issue Date: 21 October 2003 Case No. 2003-STA-00006
In the Matter of:
MARK E. HOWICK,
Complainant,
v.
CAMPBELL-EWALD COMPANY,
Respondent.
ORDER FORWARDING DOCUMENTS TO ADMINISTRATIVE REVIEW BOARD AND DENYING COMPLAINANT'S REQUEST
FOR RECONSIDERATION
On September 18, 2003, the undersigned issued a Recommended Decision and Order – Dismissal of Complaint. Below the undersigned's signature on the September 18, 2003 Dismissal of Complaint, the undersigned notified all parties that the Recommended Order of Dismissal and the administrative file would be forwarded for review by the Administrative Review Board pursuant to 29 C.F.R. § 1978.109(a) and 61 Fed. Reg. 19978 (1996). The undersigned also issued, on September 18, 2003, an order directing the parties to file briefs on the issue of whether or not sanctions should be assessed against Respondent. However, on September 25, 2003, the undersigned issued an Order Denying Complainant's Post-Hearing Motions and Sua Sponte Order Vacating August 18, 2003 Order on Sanctions and Directing Parties to Submit Briefs. In the September 25, 2003 order, Complainant was informed that he was entitled to avail himself of any right to which he was legally entitled with regard to Complainant's motion for leave of court to file a motion for reconsideration.
On September 26, 2003, the undersigned issued an Order Denying Respondent's Revised Objections to Ex Parte Communications and Prohibiting Ex Parte Communications. In that order the undersigned cited to 29 C.F.R. § 1978.109(a), which provides that "[f]or the purposes of the statute the issuance of the judge's decision shall be deemed the conclusions of the hearing," and furthermore directs that the decision and order be forwarded immediately with the record to the Administrative Review Board for review. See 29 C.F.R. § 1978.109(a).
Complainant submitted the transcript of the deposition of Craig Conrad and certain photographs to the undersigned during the week of October 6, 2003, and requested that they be included in the record. On October 14, 2003, the undersigned returned those items to Complainant since they had not been admitted into the formal record and the undersigned no longer had jurisdiction over Case No. 2003-STA-00006. On October 16, 2003, Complainant submitted via facsimile the following letter:
MR. MARK E. HOWICK v. CAMPBELL-EWALD COMPANY, 2003 –STA-6 COMPLAINANT MARK E. HOWICK'S:
1. NOTICE OF FILING OF PHOTOGRAPHS OF BOXES THAT MR. HOWICK WAS GIVEN TWO HOURS TO VIEW ON SEPTEMBER 2, 2003 (CX-S1)
2. RENEWAL OF SEPTEMBER 17, 2003 MOTION FOR DEFAULT JUDGMENT
3. RENEWAL OF AUGUST 12, 2003 MOTION FOR PARTIAL SUMMARY JUDGMENT
4. MOTION TO RECONSIDER RDO OF DISMISSAL FOR "FAILURE TO PROSECUTE"
5. QUESTIONS FOR THE COURT ABOUT THIS COURT'S DEMEANOR
6. RENEWED SUGGESTIONS OF SUA SPONTE RECUSAL OF YOUR HONOR AND SUGGESTION OF RECUSAL OF CINCINNATI OFFICE OF DOL OALJ
7. OBJECTION TO RESPONDENT'S MOTION OF SEPTEMBER 24, 2003
Dear Judge Phalen: . . .
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The undersigned's review herein of Complainant's October 16, 2003 letter will be confined solely to the fourth part of Complainant's letter, which is a motion to reconsider the undersigned's September 18, 2003 recommended decision and order – dismissal of complaint. Complainant's argument in support of his motion for reconsideration is as follows:
Having expended so much intellectual effort in an effort to deny the validity of Mr. Howick's unopposed Motion for Partial Summary Judgment, your Honor has exposed the failings of the Department of Labor as an adjudicator of whistleblower cases. There was no prejudice to Respondent by postponing Mr. Howick's deposition from the date suggested by Respondent unilaterally, without adequate notice (August 29) until the date suggested by Mr. Howick (September 4). The deposition was completed and your Honor had no basis to conclude that there was in any way any prejudice to Respondent's case by accommodating counsel's bereavement or Mr. Howick's colonoscopy and other health concerns..[sic]
The conclusion that Mr. Howick somehow failed to prosecute his case when:
A. The [sic] was ready, willing and able to proceed with examination of his witnesses and so stated without dispute on the record;
B. No prejudice to Respondent was identified by the Court or Respondent; and
C. The Court previously ordered Mr. Howick, pro se, to sign an extension of the DOL deadlines, without any basis in law.
This performance by the Court is cruelly unfair. Your Honor's order regarding depositions required Mr. Howick to spend thousands of dollars only to see his case dismissed:-- [sic] since that was apparently your intention, you should have done so before the trial, rather than giving the illusion that you were about to be fair and hold a trial. Since your dismissal did not state it was with prejudice, it was without prejudice, meaning that it can be vacated: since the deposition of Mr. Howick is in the record and your Honor has had an opportunity to read it, the dismissal must be vacated.
Complainant submitted a facsimile of a letter entitled "COMPLAINANT MARK E. HOWICK'S SUPPLEMENT TO OCTOBER 16, 2003 MOTIONS" on October 20, 2003. Complainant's October 20, 2003 letter was six pages long. However, the last sentence on page six of subparagraph z of Complainant's fifth instance of alleged "Due Process" violations did not end with a punctuation mark. The letter, as received, did not contain a signature page. Therefore, it appears that the facsimile received by the undersigned is an incomplete version.
Initially, the undersigned notes that Complainant's October 16, 2003 motion for reconsideration of the September 18, 2003 recommended decision and order is untimely. As the undersigned pointed out in the September 18, 2003 Recommended Decision and Order, 29 C.F.R. § 1978.100(b) states that 29 C.F.R Parts 18 and 1978 set forth the procedures for submission of complaints under the Surface Transportation and Assistance Act, investigations, issuance of findings and preliminary orders, objections thereto, litigation before administrative law judges, post-hearing administrative review, withdrawals and settlements, judicial review and enforcement, and deferral to other forums. Additionally, 29 C.F.R. § 18.1 states that the "Rules of Civil Procedure for the District Courts of the United States shall be applied in any situation not provided for or controlled by these rules, or by any statute, executive order or regulation." A thorough review of 29 C.F.R. Parts 18 and 1978 reveals that they contain no provisions for requesting reconsideration of a recommended decision and order. Thus, in a situation that is not controlled by 29 C.F.R. Parts 18 or 1978, the Federal Rules of Civil Procedure are applicable. Any motion for a new trial or to alter or amend a judgment must be filed no later than ten days after the entry of the judgment. Fed.R.Civ.P. 60(a), (e). Complainant's October 16, 2003 motion for reconsideration was filed more than ten days after the September 18, 2003 recommended decision and order was entered. Thus, the undersigned finds that the Complainant's motion for reconsideration is untimely.
Even if Complainant's motion for reconsideration was timely, the undersigned finds no reason to grant reconsideration. After thoroughly reviewing Complainant's October 16, 2003 motion for reconsideration, the October 20, 2003 supplement, and the September 18, 2003 Recommended Decision and Order – Dismissal of Complaint, the undersigned finds no reason to alter or amend the judgment. Therefore,
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ORDER
IT IS ORDERED that Mark E. Howick's motion for reconsideration is hereby DENIED. The undersigned has already forwarded the Recommended Decision and Order – Dismissal of Complaint and the record to the Administrative Review Board. The undersigned will forward this order and Complainant's October 16, 2003 and October 20, 2003 letters to the Administrative Review Board.
