On October 24, 1997, Complainant submitted via facsimile a Response in opposition to EG&G's Motion to Compel Discovery and in opposition to EG&G's Alternative Motion to Strike a Portion of the Complaint.

   On October 30, 1997, this office received Respondent's Motion and Memorandum in Support of Motion to Dismiss Portions of Complainant's Complaint and for a More Definite Statement of Certain Claims, in regards to Claimant's first Complaint, Case No. 97-SDW-8.

Definite Statement nor the belated filing of a Motion to Dismiss cures Respondent's failure to answer, since those motions were filed well beyond the thirty (30) day time period required for an Answer in 29 C.F.R. §18.5(a). Furthermore, Complainant asserts that since Respondent did not allege that all of the claims were in need of a more definite statement, there is no excuse for Respondent's failure to answer at least those claims.

   Accordingly, Complainant moves for a decision in her favor, taking the allegations of her Complaint filed on April 28, 1997, and Amended Complaint of June 4, 1997, as true, based on Respondent's failure to file an Answer.

Respondent's Reply to Show Cause Order

   Respondent's Reply to Order to Show Cause and Answer Opposing Complainant's Motion for Default Judgment was received in this office on November 28, 1997. Employer asserts that default judgment should not be granted because the Secretary of Labor has determined that complaints initiating proceedings before the Office of Administrative Law Judges under 29 C.F.R. Part 24 do not require an "answer."

   In support of this assertion, Employer notes that in English v. General Electric Co., 85-ERA-2 (Sec'y Feb. 13, 1992), a complainant requested a hearing pursuant to the ERA.

   In a ruling, which Employer asserts is directly applicable to this case, the Secretary of Labor held as follows:

Complainant argues that she was entitled to default judgment when she so moved before the ALJ because Respondent did not file an "answer" to her "complaint" within 30 days after service as required by the ALJ Rules of Practice, 20 C.F.R. §18.5(a). However, the complaint filed by Complainant with the Wage-Hour Administration on August 24, 1984 is not a "complaint, under the ALJ Rules of Practice, which defines a "complaint" as "any document initiating an adjudicatory proceeding..." 29 C.F.R. §18.2(d). A complaint filed with the Wage-Hour Administration under the ERA simply initiates an investigation. 29 C.F.R. §24.4. A hearing is initiated, after a determination by the Wage-Hour Administration, by filing a request for a hearing by telegram with the Chief Administrative Law Judge. 29 C.F.R. §24.4(d)(2). The ALJ properly denied Complainant's motion for default judgment. Id. at 7 (footnotes omitted).

   Employer also points out that, in a footnote, the Secretary added: "I would note that I do not interpret the regulations implementing the ERA, 29 C.F.R. Part 24, as requiring an answer to a telegram requesting a hearing. " Id. at 7, n.5.

   Secondly, Employer asserts that the contents of Judge Vittone's Notice of Hearing and Prehearing Order Number One, dated July 18, 1997, belies any claim that an answer

was to be filed in this proceeding. Said Notice instructs the parties of the manner in which to pursue their right of appeal before an ALJ.

   Employer notes the Order states that "discovery may commence immediately" and directs the parties to exchange witness lists and prehearing briefs within a month of the notice. Employer finds it significant that Judge Vittone cites 29 C.F.R. §18.6(d) (2) for the applicable penalties should the parties not comply with the Order, since §18.6 follows Rule §18.5, and §18.5 is entitled -Responsive Pleading - Answer and Request for Hearing."

   Thus, Employer asserts that the Order reflects Judge Vittone's interpretation of the regulations in the same manner as did the Secretary of Labor in English. Employer also contends that default judgment at this point in the case violates §554 and §555 of the Administrative Procedures Act, and is inappropriate as Respondent has actively defended this case.

Complainant's Response to Respondent's Answer

   On December 4, 1997, this office received Complainant's Response to Respondent's Answer and Reply to Order to Show Cause. Complainant asserts that Respondent's prior motions to dismiss and for a more definite statement have treated the Complaint as if it were a formal pleading initiating adjudicatory proceedings, subject to the procedural requirements of 29 C.F.R. Part 18 and Federal Rules of Civil Procedure regarding complaints. These requirements include the obligation of a respondent to file a timely answer under 29 C.F.R. §18.5.

   Furthermore, Complainant states that Respondent has failed to acknowledge in its Answer and Reply that it has relied on, and explicitly and impliedly asserted the applicability of both 20 C.F.R. Part 18 and the Federal Rules of Civil Procedure to whistleblower cases brought under 29 C.F.R. Part 24 in the filing of those two prior motions. Thus, Complainant contends that if those motions have a basis in law (i.e. that a Part 24 whistleblower complaint is subject to motions for failure to state a claim and for more definite statement), then those complaints are also the type that require a timely answer pursuant to Part 18 and the Federal Rules of Civil Procedure.

   In Complainant's view, it is bad faith for Respondent to attempt to have the law applied one way, in Respondent's favor in regards to its motions, and then in the same case to have the law decided to the contrary but again in its favor, in regards to Complainant's Motion for Default Judgment. Complainant asserts that either both parties should have the benefits of formal treatment of the Complaint or neither should.

   Complainant also contends that English, supra, did not involve the same circumstances as here, where Respondent, prior to Complainant's Motion for Default, had treated the Complaint as a formal pleading and moved for dismissal for failure to state a claim and for a more definite statement based on the wording of the complaint alone.

   Complainant asserts that either Respondent is in default for failure to answer, or alternatively, Respondent has filed motions that it knew or should have known had no basis in law. Thus, Complainant requests that default judgment be entered against Respondent, or in the alternative, Respondent's pending motions to dismiss and for a more definite statement should be denied.

   29 C.F.R. Part 18 provides for the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges. 29 C.F.R. §18.5 provides in pertinent part:

(a) Time for Answer. Within thirty (30) days af ter the service of a complaint, each respondent shall file an answer.

(b) Default. Failure of the respondent to file an answer within the time provided shall be deemed to constitute a waiver of his right to appear and contest the allegations of the complaint and to authorize the administrative law judge to find the facts as alleged in the complaint and to enter an initial or final decision containing such findings, appropriate conclusions, and order.

House explained the meaning of Section 5:

The specifications of the content of notice, so far as legal authority and the issues are concerned, does not mean that prior to the commencement of the proceedings an agency must anticipate all developments and all possible issues. But it does mean that, either by the formal notice or otherwise in the record, it must appear that the party affected has had ample notice of the legal and factual issues with due time to examine, consider, and prepare for them. The second sentence of the - subsection applies in those cases where the agency does not control the matter of notice because private persons are the moving parties; and in such cases the respondent parties must give notice of the issues of law or fact which they controvert so that the moving party will be apprised of the issues he must sustain. The purpose of the provision is to simplify the issues for the benefits of both the parties and the deciding authority. S.Rep. No. 752, 79th Cong. , 1st Sess. , 22 (1945) , reprinted in Legislative History of the Administrative Procedure Act, S.Doc. No. 248, 79th Cong. , 2nd Sess. , 202-203 (1946) [Emphasis Added].

   The House Judiciary Committee Report on the APA contains the identical, underlined language as the Senate Report. H.R.Rep. No. 1980, 79th Cong., 2d Sess. 36-37 (1946), Leg. Hist., 261.

   It is clear to the undersigned that the express language of §554 and the legislative history of the APA require that a respondent in a whistleblower case give notice to the complainant of the issues of law or fact which respondent controverts. In the present case, Respondent's argument that an answer is not required to be filed in response to a whistleblower complaint would in fact mean that the notice requirements of §554 of the APA could be dispensed with in these cases.

   If an answer were not filed, a complainant would arrive at the hearing without any knowledge as to which allegations the respondent was admitting or denying, and which issues were still controverted by the respondent at the time of hearing. Such a result is inapposite to the mandatory, and not merely directory, notice requirement contained in §554 of the APA.

   In the present matter, the Complainant initiated the proceedings by the filing of her complaints, and thus is the moving party. As such, she was entitled to receive prompt notice from Respondent pursuant to §554 as to which of her claims Respondent admits or denies. Therefore, in addition to failing to file an answer as required by 29 C.F.R. §18.5, Respondent's lack of filing an answer has also violated the notice requirement contained in §554 of the Administrative Procedures Act.

   Respondent contends that a complaint filed pursuant to 29 C.F.R. Part 24, which provides for the procedures for the handling of discrimination complaints under Federal employee protection statutes, does not require an answer. As previously noted, Respondent states that in English v. General Electric Co., 85-ERA-2 (Sec'y Feb. 13, 1992), the Secretary of Labor determined that complaints filed under 29 C.F.R. Part 24 do not require an answer.

   However, the undersigned disagrees with Respondent's assertion that the English decision is "directly applicable" to the present case. Prior to Complainant's Motion for Default Judgment, Respondent filed a Motion for More Definite Statement. As will be discussed further below, the basis of Respondent's motion contains an admission on its part that an answer should be filed in this matter. Thus, English did not involve the same circumstances as here, where Respondent has treated the complaint as a formal proceeding and subject to the rules contained in Part 18 in a prior motion.

   Furthermore, nothing in the Acts identified in 29 C.F.R. §24.1 authorizes the Secretary of Labor to disregard the notice provisions of the Administrative Procedures Act, as well as 29 C.F.R. Part 18, in implementing Part 24. Part 24 supplements, not supplants, the APA and the procedural rules contained at Part 18. A determination that an answer is not required in this matter would violate the previously discussed notice requirement contained at §554 of the APA.

   Moreover, the issue of the APA was not as squarely before the administrative law judge or the Secretary of Labor in English, as in the present matter. Thus, neither the ALJ nor the Secretary addressed the notice requirements of §554, which do require that a complainant in a whistleblower proceeding be given prompt notice of issues in fact or law controverted by the respondent. Therefore, the issue of the APA notice requirements was not properly considered in English, which notably distinguishes that decision from the present case.

   As the Secretary has no statutory authority to displace the provisions of the APA in a whistleblower complaint, the undersigned determines that a whistleblower complaint filed pursuant to Part 24 does require an answer, which Respondent has failed to provide in either 97-SDW-8 or 97-SDW-10.

   Respondent also notes that pursuant to Fed.R.Civ.P. 12(e), a motion for a more definite statement is permitted in lieu of an answer where "a pleading is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." Thus, Respondent contends that it could properly elect to respond to the Complaint either by filing an answer or by filing a motion pursuant to Rule 12 of the Federal Rules of Civil Procedure, as incorporated at 29 C.F.R. §18.1(a).

   As previously noted, Respondent's Motion for a More Definite Statement was received by the OALJ on October 28, 1997. Respondent specifically asserted that those claims alleging blacklisting and injury to professional reputation, contained in paragraphs 11 and 14 of the Complaint filed on April 28, 1997, and the Amended Complaint filed on June 4, 1997, were vague and ambiguous. However, Respondent clearly did not allege that all the claims were in need of a more definite statement, and the undersigned agrees with Complainant that there is no excuse for Respondent's failure to answer at least those claims.

   Furthermore/ said Motion concerns only 97-SDW-8. Thus, Respondent has still failed to file a timely answer or request a more definite statement as to the second Complaint, 97-SDW-10. Finally, Respondent's Motion for a More Definite Statement was filed over three and a half months after Complainant's Amended Complaint, and was therefore filed well beyond the 30 day time period required for an Answer at Fed.R.Civ.P 12(e).

   For the above-stated reasons, it is determined that Respondent's Motion for More Definite Statement filed in 97-SDW-8 does not rectify the fact that Respondent has failed to timely answer the complaints in both cases.

   Moreover, the very words used by Respondent in its Memorandum in support of the Motion for More Definite Statement illustrate that Respondent was aware that an answer should be filed. Respondent states the "The rules applicable to this proceeding provide that '[i]f a pleading ... is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement' before answering", and that the claims "are so vague and ambiguous that the respondent cannot answer, even with a simple denial, in good faith or without prejudice to itself." [Emphasis added) Thus, in asserting the position that certain claims require a more definite statement, Respondent has admitted that an Answer is, in fact, required in this matter.

   Furthermore, the undersigned attaches little significance to Judge Vittone's Notice of Hearing and Prehearing Order Number One, dated July 18, 1997, as being dispositive of the present issue. The primary purpose of this order was to inform the parties that discovery could commence immediately, and it did not address the current dispute that has subsequently arisen since its issuance.

   However, the undersigned notes that said Order contains numerous references to Part 18: §18.3(f) (filing and service by use of facsimile); §18.8 (prehearing conferences); and §18.9(e)(1)(appointment of settlement judge). The Order also advises the parties that they are subject to default judgment and other sanctions for failure to follow the procedural requirements of Part 18. Therefore, contrary to Respondent's assertion that the Order implies that this complaint does not require an answer, the undersigned finds that its contents would give the parties notice that Part 18 is applicable to this matter.

   Finally, the undersigned agrees with Complainant that Respondent has attempted to have the law applied in one manner, in Respondent's favor in regards to its motions for Dismissal for Failure to State a Claim and for a More Definite statement, and then argues to have the law applied in a contrary manner, but again in its favor, in relation to Complainant's Motion for Default Judgment.

   As previously discussed above, Respondent admitted the applicability of 29 C.F.R. Part 18 and the Federal Rules of Civil Procedure to this matter, and the requirement that an answer be filed in this case when requesting that the undersigned grant its Motion for More Definite Statement. Furthermore, in regards to its Motion for Dismissal for Failure to State a Claim, Respondent has asserted that the rules applicable to this proceeding are 29 C.F.R. §18.1(a) and

Fed.R.Civ.P. 12(b) (6), and that they provide for dismissal for failure to state a claim upon which relief can be granted.

   Thus, in filing its two prior motions in this case, Respondent has relied on, and asserted the applicability of both 29 C.F.R. Part 18 and the Federal Rules of Civil Procedure to whistleblower cases brought under 29 C.F.R. Part 24. If a Part 24 whistleblower complaint is subject to motions to dismiss for failure to state a claim and for a more definite statement pursuant to Part 18 and the Federal Rules of Civil Procedure, as Respondent asserts, then Respondent must also concede that they are also the type of complaints that require a timely and adequate answer pursuant to Part 18 and the Federal Rules.

   Respondent has had no difficulty asserting the applicability of 29 C.F.R. Part 18 and the Federal Rules of Civil Procedure to whistleblower complaints when the applicability of these rules is to their tactical advantage. But now that Respondent is faced with this Motion for Default Judgment, Respondent asserts that whistleblower complaints are not true complaints requiring an answer, but only documents that initiate an investigation. Respondent simply cannot have its cake and eat it, too. Respondent has previously conceded in its Motion for a More Definite Statement that the complaints in this matter require an answer, and thus Respondent is estopped from denying that requirement in regards to the present Motion for Default Judgment.

   In conclusion, the undersigned determines that an answer to Complainant's Complaints is required pursuant to 29 C.F.R. §18.5 (a) and §554 of the Administrative Procedures Act. Respondent has failed to file an answer to either Complainant's Amended Complaint of June 4, 1997, and the second Complaint dated July 29, 1997, within the thirty (30) days after service of a complaint as required by 29 C.F.R. §18.5(a).

   Accordingly, Complainant's Motion for Default Judgment shall be granted pursuant to 29 C.F.R. §18.5(b), and default judgment shall be entered in Complainant's favor on all provisions of both complaints, taking the allegations in her Amended Complaint (Case No. 97-SDW-8) and second Complaint (Case No. 97-SDW-10) as true.

   IT IS ORDERED that Complainant"s Motion for Default Judgment is HEREBY GRANTED. IT IS FURTHER ORDERED that:

1. Respondent shall cease and desist from retaliating against Complainant.

2 . Respondent shall reinstate Complainant to Complainant's former position of Operations Hazardous Waste Coordinator, together with the same terms, conditions, and privileges of Complainant's employment, and shall award Complainant back pay from July 1, 1997. However, Complainant shall notify both the undersigned and Respondent within five (5) days of receipt of this order if she chooses to decline the remedy of reinstatement.

3. Respondent shall cease and desist from retaliating against Respondent's existing employees who may be requested to participate in any proceeding before the Department of Labor in this matter.

4 . Within thirty (30) days from the receipt of this Order, Complainant's Counsel shall file a Bill of Particulars with the office of the undersigned, setting forth the compensatory and exemplary damages which Complainant alleges she is entitled to, along with attorney fees and costs for which Complainant seeks reimbursement under the applicable statutes.

5. Complainant's Counsel shall also include in the Bill of Particulars whether or not a hearing will be necessary with regards to the damages aspect of this matter.

6. Respondent shall have thirty (30) days within which to respond to Complainant's request for alleged damages. Respondent will also notify the undersigned in its response whether or not it believes a hearing will be necessary on the issue of damages.

   Entered this 26th day of January, 1998, at Long Beach, California.

      SAMUEL J. SMITH
      Administrative Law Judge