Administrative Law Judge (ALJ) Thomas W. Murrett submitted
a Recommended Order Dismissing Complaint (R.O.) in this case
arising under the employee protection provisions of the Energy
Reorganization Act of 1974, as amended, 42 U.S.C. § 5851 (1982).
The ALJ recommended that the complaint in this case be dismissed
because the Complainant did not show good cause why neither he
nor his attorney appeared on the scheduled date for the hearing.
I find that the circumstances which led Complainant and his
attorney to fail to appear for the hearing did constitute good
cause. This matter, therefore, will be remanded to the ALJ for
further proceedings.
Respondent requested a hearing after an investigation and
finding in favor of Complainant by the Wage and Hour Division.
The ALJ issued a notice of hearing on December 17, 1987, setting
the hearing for January 25, 1988. Neither Complainant nor his
attorney appeared for the hearing. The ALJ issued an Order to
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Show Cause on January 25, 1988, giving Complainant 30 days to
show cause why the complaint should not be dismissed. 29 C.F.R.
§ 24.5(e)(4)(B)(ii) (1987). Shortly after adjourning the
hearing on January 25, 1988, the ALJ received a letter from
Complainant's counsel, dated January 20, 1988, entering
counsel's appearance and requesting a postponement of "the
hearing scheduled for January 28, 1988." In his response to the
order to Show Cause, Complainant stated that there had been a
misunderstanding between Complainant and Complainant's counsel
about the date of the hearing. Complainant's counsel was not
served with a copy of the Notice of Hearing, but was informed of
it orally, and mistakenly, by Complainant. The ALJ held that
Complainant failed to show good cause for not dismissing the
complaint, finding that complainant and his attorney were guilty
of "inexcusable neglect", and recommended dismissal of the
complaint.
The ALJ recognized that dismissal with prejudice is a
severe sanction which should be "tempered by a careful exercise
of judicial discretion." R.O. at 3, quoting from Durham v.
Florida East Coast Ry. Co., 358 F.2d 366, 368 (9th Cir. 1967)
(emphasis by ALJ). However, relying on National Hockey League
v. Metropolitan Hockey Club, 427 U.S. 639 (1976), the ALJ held
that orders of dismissal are necessary and appropriate sanctions
to deter uncooperative litigants. 427 U.S. at 643. In National
Hockey League v. Metropolitan Hockey Club, the Court upheld
dismissal where a party had failed to comply with discovery
orders for 17 months during which, the Court said, the district
court was "extremely patient", and the responses to discovery
ultimately provided were clearly inadequate. Id. at 642. There
were no comparable aggravated facts in this case, nor was the
ALJ faced with failure to comply with a statutory time limit
with respect to which he had little if any discretion. Dawe v.
Old Ben Coal Co., 754 F.2d 225, 227 (7th Cir. 1985).
Complainant's attorney here was under the mistaken
impression that the hearing was scheduled for January 28, 1988,
and submitted a request for a postponement more than a week (he
thought) in advance. Although Complainant's counsel may have
acted somewhat more diligently by placing a telephone call to
the ALJ and the other party at the same time he filed his
request for a postponement, I think a careful exercise of
discretion here lies in favor of not denying Complainant his day
in court for a simple mistake with no suggestion, as the ALJ
found, of willful or contumacious conduct. R.O. at 3.
Accordingly, this matter is REMANDED to the ALJ for further
proceedings.
