Background
On July 24, 1995, I issued an Order informing the parties that the Office of
Administrative Law Judges did not have a record of receiving a hearing request from
Respondent. Complainant filed a motion for default judgment on July 24, 1995, Respondent
filed a response to the order on July 28, 1995, and Complainant filed a response to Respondent's
submission on July 30, 1995. On August 2, 1995, I issued an order denying Complainant's
motion for default judgment. Subsequently, the matter was assigned to Administrative Law
Judge Pamela Lakes Wood for hearing and decision on the merits.
1. Motion to recuse
Complainant moved that the undersigned "sua sponte"
consider recusal from ruling on the motions for reconsideration based on "apparent and
continuing prejudice against and annoyance at counsel," and -- because of the error in
applying Rule 60(b) to an interlocutory order -- "an appearance of impropriety in appearing
to punish both counsel and Complainant...."
Neither judicial criticism of counsel nor adverse judicial rulings, standing
alone, constitute a valid basis for a motion for disqualification. Rather, disqualification must be
based on such a high degree of favoritism or antagonism as to make fair judgment impossible.
Liteky v. United States , --- U.S. ----, ----, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994).
See also Standing Committee on Discipline of U.S. Dist. Court for Cent. Dist.
of California v. Yagman , 55 F.3d 1430 (9th Cir. 1995); Flor v. U.S. Dept. of
Energy , 93-TSC-1 (Sec'y Dec. 9, 1994). Complainant's motion to recuse is frivolous, and is
denied as I know of no credible basis for finding that I have been improperly biased in this
matter.
2. The timeliness of Complainant's March 14, 1998 and March 1998 motions to
reconsider
The Fourth Circuit Court of Appeals, applying Rule 54(b) of the Federal
Rules of Civil Procedure, held in Fayetteville Investors v. Commercial Builders, Inc. ,
936 F.2d 1462, 1469-70 (4th Cir. 1991), that "[a]n interlocutory order is subject to
reconsideration at any time prior to the entry of a final judgment." In the instant case,
Judge Wood issued her Recommended Decision and Order on March 3, 1998. She denied
reconsideration of a motion to reconsider the issue of the timeliness of Respondent's hearing
request on March 12, 1998. Thus, Complainant did not file her motions for reconsideration with
the undersigned until after the presiding judge had issued her final rulings in the matter. Thus, I
find that Complainant's motions for reconsideration of my August 2, 1995 order were untimely
as they were not filed until after the presiding judge had entered her final judgment.
3. Whether Complainant's motions to reconsider indicate that justice requires
relief from the August 2, 1995 order
Assuming arguendo that Complainant's March 12 and March 14, 1998
motions to reconsider were timely, the standard for determination of whether to grant
reconsideration is whether justice requires relief from the August 2, 1995 order. See, e.g.,
Acme Printing Ink Co. v. Menard, Inc. , 891 F.Supp. 1289, 1295 (E.D.Wis. 1995) (citing
Note of Advisory Committee to the 1946 Amendment to Rule 60(b)); see also
Complainant's motion to reconsider denial of reconsideration at Paragraph Number 1, citing
Federal Rules Advisory Committee note to Rule 60(b).
Complainant's primary ground for seeking relief is the argument that the
time period for requesting a hearing stated at 29 C.F.R. § 24.4(3)(i) is jurisdictional. This
issue was addressed in the August 2, 1995 order. Complainant's current motions base the
jurisdictional argument on Crosier v. Westinghouse Hanford Co ., 92-CAA-3 (Sec'y Jan.
12, 1994) and Backen v. Entergy Operations , 95-ERA-46 (ARB June 7, 1996). In both
Crosier and Backen , however, the unambiguous holding was not that the five
day time period for filing a request for a hearing is jurisdictional, but that equitable grounds for
modification of the time deadline had not been established. Complainant also has not addressed
Ward v. Bechtel Const., Inc. , 85-ERA-9 (Sec'y July 11, 1986), which indicates that an
untimely request for a hearing may be excused on grounds of mistake, inadvertence, or excusable
neglect. Thus, the ruling concerning timeliness in the August 2, 1995 order was not clearly
erroneous, and the mere possibility that the Administrative Review Board might find the ruling
to be in error falls well short of establishing that justice requires reconsideration of that motion.
Rather, the fact that the matter is now pending before the Administrative
Review Board, which is fully empowered to correct any error there may have been in the August
2, 1995 order, militates strongly against a finding that reconsideration of the August 2, 1995
order is necessary to promote the ends of justice. Also militating against reconsideration is the
fact that Complainant's motion for reconsideration was filed more than two years and seven
months after entry of the order. The only matter Complainant's current motions raise that could
not have been raised when the matter was first addressed is the Backen decision.
Backen , however, essentially follows Crosier and Ward .
Based on the foregoing, I find that reconsideration of the August 2, 1995
order is not necessary to promote the ends of justice. Accordingly, Complainant's motion for
reconsideration is DENIED .
SO ORDERED.
JOHN M. VITTONE
JMV/trs
[ENDNOTES]
1
2 See Willy v. The Coastal Corp. , 85-CAA-1 @ n.1 (ALJ Dec. 4, 1997).
