Guity v. Tennessee Valley Authority, 90-ERA-10 (ALJ Feb. 17, 1993)

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Guity v. Tennessee Valley Authority, 90-ERA-10 (ALJ Feb. 17, 1993)

U.S. Department of Labor
Office of Administrative Law Judges
800 K Street, N.W.
Washington, D.C. 20001-8002

Date: FEB 17 1993

Case No.: 90-ERA-10

In the Matter of:

Mansour Guity,
Complainant

Tennessee Valley Authority,
Respondent

Before: John M. Vittone
Deputy Chief Judge

NOTICE OF REASSIGNMENT,
ORDER TO SHOW CAUSE,
AND ORDER TO PROVIDE CITATION OF LEGAL AUTHORITY

Notice of Reassignment

This case has been reassigned to Deputy Chief Administrative Law Judge John M. Vittone. All further submissions in this matter should be directed to Judge Vittone at this address:

Deputy Chief Judge John M. Vittone
Office of Administrative Law Judges
Suite 40ON
800 K Street, NW
Washington, DC 20001

Status of Complaint and Pending Motions

Background

On September 5, 1990, Administrative Law Judge Rudolf L. Jansen granted a Joint Motion for Continuance of the hearing in this matter based on the Complainant's mental condition. The motion was based in part on the indefinite stay placed on the Complainants complaint by the United States District Court for the Eastern District of Tennessee in Case No. 3-87-843.

On December 11, 1990 Judge Jansen set a hearing

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date of April 30, 1991. On January 25, 1991, however, Judge Jansen granted a second Joint Motion for Continuance in this matter. The second Joint Motion was again premised on the Complainant's mental condition, but included this time a waiver of "all time constraints required by the law and/or regulations." The Motion indicated that the parties agreed to a continuance until ninety days after the proceedings of the District Court in No. 3-87-843 have been completed.¹

On November 7, 1991, Judge Jansen issued an Order directing the parties to apprise him as to the status of the Complainants mental health and of the case pending in United States District Court. In her November 25, 1991 response, counsel for the Complainant informed that the Complainant's mental health condition had not changed and that there had been no change in the status of the case pending in United States District Court. Counsel for the Respondent stated in its November 25, 1991 response that the Federal court action remained stayed on the basis of the Complainant's mental condition, and that no trial date had been set. Respondent's counsel stated that the Respondent had no direct knowledge of the Complainant's mental condition, but quoted a medical report on the Complainant's condition.

On December 2, 1991, Judge Jansen returned the administrative file to the pending docket, where the case now remains in suspense.

On December 17, 1991, counsel for the Respondent informed Judge Jansen that the medical report quoted was filed under seal with the Federal court, and that he was requesting that Judge Jansen also place the November 25, 1991 letter under seal or that the November 25, 1991 be returned to the him and exchanged for a letter not containing the quotation. No authority for an administrative law judge to place documents under seal was cited.

Discussion

Although the parties have waived any statutory or regulatory deadlines, both the Energy Reorganization Act, 42 U.S.C. § 5851 and the implementing regulations at 29 C.F.R. Part 24 are clearly designed for expedited adjudication of whistleblower complaints. Furthermore, it is within the province of a court to regulate its docket. See Billings v. Tennessee Valley Authority, 89-ERA-16 and 25, 90-ERA-2, 8 and 18 (Sec'y July 29, 1992 (an agency's power to control its docket is similar to that of a court). This matter has been pending before the Office of Administrative Law Judges since receipt on December 12, 1989 of the Complainant's telegram requesting a hearing, and there is no indication that the continuance as currently granted

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could not continue indefinitely. The case has been pending for over three years, and for over two years since the continuance was granted. It has been over one year since any party has communicated with this Office.

In view of the indefinite nature of the continuance and the undue amount of time that this matter has already been pending, it is appropriate to determine whether the stay should be lifted and this matter be scheduled for hearing in the near future. A continuance that could go on indefinitely must be justified by a concrete showing of why the case cannot go forward. In this instance, a record needs to be established showing that the Complainant is not mentally capable of pursuing his claim, that mental incapability constitutes a legally adequate reason for indefinitely continuing a case, and that the interests of the Respondent and the public are not unduly prejudiced by the extended continuance. Accordingly,

IT IS ORDERED that the parties show cause why the stay should not be lifted and this matter scheduled for hearing. The response to this Order must be received by this Office on or before the close of business (5:00 p.m. EST) on March 29, 1993 to be timely.

IT IS ALSO ORDERED that the parties submit a written statement discussing the authority of an administrative law judge to place the Respondents original November 25, 1991 letter under protective seal. This statement must be received by this Office on or before the close of business on March 29, 1993 to be timely.

If a party intends to provide additional documentation in its response to the Order to Show Cause that needs to be kept confidential, it is GRANTED LEAVE to file a motion for an appropriate order from the administrative law judge, providing citation of the legal authority the requested action, prior to submission of the additional documentation.² Such a motion, however, must be received by this Office on or before the close of business on March 8, 1993.

At Washington, D.C.

Entered:
by:

John M. Vittone
Deputy Chief Judge

JMV/trs

[ENDNOTES]

¹The LEXIS Genfed library was checked on February 3, 1993. The check indicated that No. 3-87-843, if disposed by the Federal District Court, was not placed on the LEXIS service.

²It is noted for purposes of comparison that the Secretary of Labor has repeatedly ruled that confidentiality provisions of whistleblower settlement agreements do not prevent the settlement agreement from becoming part of the administrative record, which is subject to the Freedom of Information Act, 5 U.S.C. § 552, which requires federal agencies to disclose requested records unless they are exempt from disclosure under the Act. See, e.g., Hamka v. The Detroit Edison Co., 88-ERA-26 (Sec'y Dec. 9, 1991) (order to submit attachments); McCuistion v. Tennessee Valley Authority, 90-ERA-44 (Sec'y Aug. 31, 1992); Reid v. Tennessee Valley Authority, 91-ERA-17 (Sec'y Aug. 31, 1992); Smith v. Tennessee Valley Authority, 92-ERA-23 and 24 (Sec'y Aug. 31, 1992). See also Vogel v. Florida Power Corp., 90-ERA-49 (Sec'y Mar. 12, 1991), in which the Secretary refused to seal the record in regard to a settlement agreement where the parties did not present any reason for sealing the record.