DATE: March 1, 1994
CASE NOS. 85-ERA-38
85-ERA-39
IN THE MATTER OF
JOY MALPASS AND JOHN
CLARENCE LEWIS,
COMPLAINANT,
v.
GENERAL ELECTRIC COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case raises important questions of the authority of an
Administrative Law Judge (ALJ) over prehearing procedures, to set
the time for a hearing, and to impose sanctions for failure to
comply with his orders under the employee protection provision of
the Energy Reorganization Act of 1974, as amended, 42 U.S.C.
§ 5851 (1988) (ERA or the Act) and its implementing
regulations, 29 C.F.R. Part 24 (1993), as well as the Department
of Labor Rules of Practice and Procedure for Administrative
Hearings Before the Office of Administrative Law Judges, 29
C.F.R. Part 18 (1993) (Rules of Practice). The ALJ recommended
dismissing these complaints because Complainants and their
counsel failed to appear for the hearing scheduled for December
2, 1985, and because complainants failed to respond to various
discovery requests by respondent and refused to comply with the
ALJ's pre-hearing and discovery orders. ALJ Recommended Order of
Dismissal (R.O.D.) at 9. I find that the ALJ was well within his
authority in the actions he took in this case and I adopt his
recommendation that these complaints be dismissed. I also agree
with the ALJ, although for different reasons, that attorney's
[PAGE 2]
fees and costs may not be assessed against Complainants or their
counsel.
BACKGROUND
The complaint in these consolidated cases was filed May 23,
1985 and subsequently amended three times. After an
investigation, the Wage and Hour Division of the Department of
Labor's Employment Standards Administration (Wage-Hour) found no
violation and so notified the parties on August 30, 1985.
Complainants filed a timely request for a hearing on September 5,
1985.
The ALJ contacted counsel for the parties by conference call
on September 18, 1985, setting December 2, 1985 for the hearing.
During that call, Mozart Ratner, counsel for complainants, [1]
objected to the December 2, 1985 date on the grounds that he had
"prior judicial commitments" (see 29 C.F.R. § 18.28(a)), and
that he had a right to a complete copy of the Wage and Hour
Division's final investigation report (with only the names of
informants deleted) in order to begin his preparation in the case
and before his clients could be required to respond to any
discovery. Mr. Ratner's prior judicial commitments were the writing of the
initial and reply briefs in English v. General Electric,
85-ERA-2, which were due on October 1, 1985 and November 1, 1985,
respectively, and another unspecified commitment of 10 days
duration. The ALJ did not accept these arguments, and by pre-
hearing order of October 10, 1985 confirmed the hearing date of
December 2, 1985 and set November 15, 1985 as the last date for
the parties to exchange witness lists, exhibits and a pre-hearing
statement.
On October 16, 1985 Respondent served notice of the
depositions of the Complainants to be taken on October 31, 1985,
and served a request for production of documents with a response
date of November 20, 1985. Respondent also served its first set
of interrogatories on Complainants on September 30, 1985, with
responses requested by November 15, 1985.
The day before the depositions were to be taken, October 30,
1985, Mr. Ratner made an oral motion for a protective order in a
conference call between the ALJ and counsel for Respondent. He
argued that he could not respond to any of Respondent's discovery
until he had an unredacted copy of the Wage and Hour final
investigation report. He had made a Freedom of Information Act
(FOIA) request for the full report, which had been denied by
Wage-Hour and which he was appealing to the Solicitor. See 29
C.F.R. § 70.22. In his written motion for a protective
order, filed on November 4, 1985, and read over the telephone in
the conference call of October 30, 1985, the only grounds upon
which Mr. Ratner based his request for a protective order with
respect to G.E.'s interrogatories was that G.E. would be able to
discover
[PAGE 3]
the names of employees who had spoken to the Wage-Hour
investigator, information which the Wage-Hour Division always
kept confidential. Mr. Ratner offered no further explanation of
why he and his clients could not respond to any of G.E.'s other
discovery without a full copy of the final investigation report.
The ALJ denied the motion for a protective order and ordered
complainants to appear for their depositions the next day. They
did not.
On November 15, 1985 the ALJ ordered complainants to appear
for their depositions on November 22 and 23, 1985 and to respond
to G.E.'s interrogatories and request for production of
documents. Complainants did not comply with that order. [2]
Complainants moved for involuntary dismissal on November 7, 1985
in order to seek review of the ALJ's denial of their request for
a protective order. That motion was denied on November 15, 1985.
On November 25, 1985 Respondent made a motion for an order to
show cause why the complaints should not be dismissed and why
attorney's fees and costs should not be awarded against Complainants. The ALJ's recommended decision constitutes his
ruling on that motion.
On November 29, 1985, Complainants moved the Secretary for
a stay pending appeal to postpone the hearing scheduled for
December 2, 1985. That motion was denied on December 20, 1985.
The ALJ and counsel for Respondent appeared for the hearing on
December 2, 1985 in Wilmington, N.C., but neither Complainants
nor their counsel appeared, and they gave no prior notice that
they would not appear. The ALJ issued an order to show cause why
the complaints should not be dismissed and costs and attorney's
fees should not be awarded against Complainants and their
counsel. The ALJ considered Complainants' and Respondent's
responses to this order and concluded that Complainants had not
shown good cause and recommended that their complaints be
dismissed. However, he denied Respondent's request for
attorney's fees and costs, holding that imposition of those
sanctions would have a chilling effect on whistleblowers and
their counsel.
DISCUSSION
The authority of an administrative law judge to control the
course of a hearing and rule on procedural matters derives, in
the first instance, from section 7(b) of the Administrative
Procedure Act, 5 U.S.C. § 556(c) (1988) (APA) which provides
that, among other things,
employees presiding at hearings may -
* * * *
(5) regulate the course of the hearing;
* * * *
(7) dispose of procedural requests or
[PAGE 4]
similar matters;
As to setting the time and place for hearings, section 5(a)
of the APA only requires that "due regard shall be had for the
convenience and necessity of the parties or their
representatives." 5 U.S.C. § 554(b).
The Department of Labor has supplemented the APA with
regulations applicable to all administrative hearings, the Rules
of Practice, and with specific regulations applicable to ERA
cases, 29 C.F.R. Part 24. The questions involved here are
(1) the scope of an ALJ's discretion under the APA and 29 C.F.R.
§ 18.28 to grant a continuance of the hearing, (2) the scope
of an ALJ's authority under the APA and 29 C.F.R. § 18.21 to
compel compliance with discovery, and (3) the appropriate
sanctions under the Rules of Practice and 29 C.F.R. Part 24 for
failure to comply with an ALJ's orders regulating the course of a
hearing.
I - Denial of Continuance
At the outset, I reject Complainants' argument that 29
C.F.R. § 18.28 leaves the ALJ with no discretion to deny a
request for a continuance once counsel has identified "prior
judicial commitments." The nature of the prior commitment
must constitute "good cause" just as any other reason for a
continuance. The circumstance of this case are an excellent
example of why the ALJ retains discretion to evaluate the nature
of the prior commitment in deciding whether to grant the
continuance. An argument scheduled in the Supreme Court on the
same day as the hearing, for example, would present a fairly
compelling case for a continuance. At the other end of the
spectrum are cases such as this where counsel have briefs due, or
perhaps depositions scheduled, interrogatories to respond to, or
pre-trial orders to comply with. Few trial lawyers do not have
several cases in active litigation with many overlapping due
dates to be met. The ALJ must have discretion to evaluate the
nature and extent of these competing commitments or control of
administrative proceedings will be in the hands of counsel, not
the ALJ. Therefore, I view the issue here to be whether the ALJ
abused his discretion.
The courts have uniformly held, in a variety of
administrative contexts, that the grant or denial of a
continuance is within the sound discretion of the ALJ. NLRB
v. A.J. Siris Products Corp. of Virginia, 186 F.2d 502 (4th
Cir. 1951). The Seventh Circuit summarized the law on an ALJ's
authority to grant a continuance saying, "[i]t is well
established that the grant or denial of a continuance is within
the discretion of the ALJ and will not be overturned absent a
clear showing of abuse. [Citation omitted.] Such an abuse will
be found only where the exercise of discretion 'is demonstrated
[PAGE 5]
to clearly prejudice the appealing party.' Electronic Design
and Development Co. v. NLRB, 409 F.2d 631, 635 (9th Cir.
1969)." NLRB v. Pan Scape Corp., 607 F.2d 198, 201 (7th
Cir. 1979).
A review of some of the circumstances under which the courts
have found that denial of a continuance was not an abuse of
discretion strongly supports the ALJ's action in this case. In
Pan Scape, a denial of a continuance was upheld where the
employer sought time to obtain the presence of assertedly key
management witnesses when the hearing had been scheduled well in
advance. In Professional Air Traffic Controllers Organization
v. Federal Labor Relations Authority, 685 F.2d 547 (D.C. Cir.
1982), PATCO sought a thirty day continuance to prepare and
present evidence in mitigation of the remedy sought by the FLRA.
The court enumerated several factors to be considered by an ALJ
in exercising his discretion: "the length of the delay
requested, the potential adverse effects of that delay, the
possible prejudice to the moving party if denied the delay, and
the importance of the testimony that may be adduced if the delay
is granted." 685 F.2d 547, 588. PATCO never identified, either
before the FLRA or the court of appeals, the nature of the
evidence it would have offered in mitigation, while it had had
several months to prepare. PATCO was at least under an
obligation to make a "proffer" of evidence which it did not do.
The court held it was not an abuse of discretion to deny the
continuance in these circumstances. 685 F.2d 547, 589.
In United Fruit and Vegetable Co., Inc. v. Director of
the Fruit and Vegetable Division, Marketing Service, United
States Department of Agriculture, 668 F.2d 983 (8th Cir.
1982), cert. denied 456 U.S. 1007, the court held
it was not an abuse of discretion for an ALJ to deny a
continuance for United Fruit to obtain its own records from the
FBI after they had been seized in a criminal investigation. The
court said United Fruit did not show what purpose a continuance
would serve and did not make an offer of proof as to what the
records would establish.
The authority of an ALJ over the course of a hearing is
analogous to that of a federal district judge over pre-trial and
trial proceedings. Here too, the courts of appeal have sustained
the broad discretion of district judges to grant or deny
continuances. In Leve v. Schering Corp., 73 F.R.D. 537
(D.N.J. 1975), aff'd 556 F.2d 567 (3rd Cir. 1975), plaintiffs
failed to appear for their depositions and to produce documents,
and offered as a reason for that failure and as grounds for a
continuance the personal difficulties of their counsel - the
death of an associate, the medical leave of a partner. Rejecting
these grounds, and denying a continuance, the district court said
"if the personnel problems were so serious, no explanation is
given of the failure to turn the case over to someone else.
[PAGE 6]
Plaintiffs' interests required that this matter be given
attention, and if present counsel was unable to do so, he had a
professional obligation to see that someone else who could do so
be engaged." 73 F.R.D. at 540.
I find that the ALJ here did not abuse his discretion in
rejecting Mr. Ratner's grounds for a continuance, that is, the
briefs due in English v. General Electric and another
unspecified commitment, and the need for the Wage-Hour Final
Investigation Report to prepare for trial. Mr. Ratner had 75
days actual notice of the hearing (September 18, 1985 to December
2, 1985) and had a considerable amount of time prior to that for
preparation, having filed the original complaint on May 23, 1985.
As I pointed out above, a deadline like filing a brief which
falls in the same general time period as a scheduled hearing is
the type of commitment which the ALJ must have discretion to
evaluate, and some clear showing of prejudice to the moving party
must be made before an abuse of discretion can be found. [3]
Mr. Ratner has made no showing or proffer of what kind of
information he could gain from the Wage-Hour final investigation
report which would be so crucial to his preparation in this case
as to warrant a continuance. In addition, he has made no
argument or proffer with respect to this document which could
justify refusing to proceed with discovery at all and instructing
his clients not to appear for their depositions. The final
investigation report is not part of the record in an ERA case.
It is not admissible as an exhibit in the case because the
hearing before the ALJ is a trial de novo and the final
investigation report is not entitled to any weight or deference.
Egenrieder v. Metropolitan Edison Co./GPU, Case No. 85-
ERA-23, Sec. Order, April 20, 1987, slip op. at 8 n.9. There is
no regulation requiring that the final investigation report be
made part of the record or be filed with the ALJ. [4] It is
therefore not part of the record for decision under section 8 of
the APA,
5 U.S.C. § 557, as defined in section 7(d), 5 U.S.C. §
556(e).
Complainants sought the final investigation report by means
of a FOIA request, not through discovery under the Rules of
Practice. But the FOIA is not a means of circumventing
discovery, and pendency of an FOIA claim is not grounds for
enjoining an agency proceeding. See Bannercraft Clothing Co.
v. Renegotiation Board, 415 U.S. 1 (1974); Abrahamson
Chrysler Plymouth v. NLRB, 561 F.2d 63 (7th Cir. 1977). [5]
II. Refusal To Proceed With Discovery
It is difficult to conceive what Mr. Ratner could glean from
the only portion of the Wage-Hour final investigation report that
was not provided to him, the investigator's reasoning and
conclusions, which could be so crucial to his trial preparation
as to warrant a continuance or justify an absolute refusal to
[PAGE 7]
proceed with discovery at all. Complainants could have had their
depositions taken and Mr. Ratner could have noted appropriate
objections for the record to be ruled on at the hearing by the
ALJ if Respondent sought to use the depositions. Mr. Ratner
could have tried the case under an objection and sought review by
showing how his clients were prejudiced by the lack of access to
that one portion of the report. Mr. Ratner, of course, had all
the discovery mechanisms of the Rules of Practice available to
him to prepare for the hearing. He should have made reasonable
attempts to obtain by other means the information he sought
through the withheld portion of the final investigation report
before refusing to proceed at all.
Moreover, I reject the grounds Complainants set forth in
their motion for a protective order as the basis for refusing to
answer Respondent's interrogatories. They argued that Respondent
would be abe to obtain the names of informants who gave
information to the government. In effect, Complainants would
treat interrogatories served on them as interrogatories served
on the Department of Labor and attempt to assert the informer's
privilege on behalf of the Wage-Hour Administrator. That
privilege is simply not theirs to assert. The informer's
privilege is a governmental privilege, Wirtz v. Governmental
Finance & Loan Company of West End, 326 F.2d 561 (5th Cir.
1964), and is assertable only by the government, U.S. v.
Reynolds, 345 U.S. 1 (1952); Carr v. Monroe Manufacturing
Co., 431 F.2d 384 (5th Cir. 1970). The proper procedure to
follow would have been to notify the Wage-Hour Administrator of
the discovery being sought to give the Administrator an
opportunity to intervene for the limited purpose of protecting
informers' names. Moreover, Respondent's interrogatories did not
request the names of employees who spoke to the Wage-Hour
investigator. The interrogatories sought, among other things,
the names of employees other than Complainants who were
intimidated and harassed by Respondent, and the acts or
statements which constituted such intimidation and harassment.
It is doubtful whether the informer's privilege is even
applicable to shield this type of information. See United
States v. Julius Duchin Enterprises, Inc., 370 F. Supp. 942,
944-45 (D. Tenn. 1973). In addition to their refusal to answer
interrogatories, Complainants never gave any explanation of why
the lack of that portion of the final investigation report
justified refusal to have their depositions taken.
I also reject Complainants' assertion that fear of reprisal
justifies a "total curtailment of employer discovery" of the
names of a whistleblower's witnesses prior to the hearing. Such
a limitation on a party's pre-trial preparation would be totally
inconsistent with modern theories of discovery. "[T]he sporting
[PAGE 8]
theory of litigation thrives on surprise - including surprise
witnesses. Elimination of this sort of tactic is a legitimate
purpose of the discover rules. . . ." J. Moore, Federal Practice
¶ 26.57(4), at 26-212. One of the leading articles in the
area, Tomlinson, Discovery in Agency Adjudication, 1971 Duke Law
Journal 89, points out that, where there is an explicit anti-
retaliation provision "[t]he disclosure of witnesses' names may
in some instances actually protect them. . . . [T]he . . .
employer knows that his treatment of the [witness] will be
closely scrutinized to insure that there is no discrimination
against him. . . . The [employer's] awareness of this scrutiny
deters from seeking reprisals against the [witness]." Id.
at 101. In order to obtain a protective order from disclosing
the name of a witness, the applicant "must produce substantial
evidence, not just unverifiable fears, that disclosure would
endanger the witness." Id. at 102 (footnote omitted).
Complainants presented no such evidence at all here. [6]
III. Sanctions.
The ALJ recommended that the complaints in this case be
dismissed, but recommended that Respondent's attorney's fees and
costs not be assessed as a sanction against Complainants or their
attorney. He believed assessing attorney fees and costs as a
sanction "would have a chilling effect on other potential
'whistleblowers' and could have a similar effect on the
willingness of attorneys to represent such 'whistleblowers.'"
R.O.D. at 9. Complainants excepted to the dismissal of their
complaints for failure to show good cause for their failure to
appear for the hearing. Respondent excepted to the failure of
the ALJ to award attorney's fees and costs.
1 - Dismissal
Department of Labor regulations implementing the ERA provide
that an ALJ may "dismiss a claim (A) Upon the failure of the
complaint or his or her representative to attend a hearing
without good cause; [or] (B) Upon the failure of the complainant
to comply with a lawful order of the administrative law judge."
29 C.F.R. § 24.5(e)(4). The Secretary has not previously
considered the question of what constitutes good cause for
failure to attend a hearing or comply with an ALJ's order. [7]
The Secretary also has not considered whether dismissal could be
ordered for the misconduct of a party's attorney. The courts,
however, have considered this issue in a variety of contexts.
The leading Supreme Court decision on the authority of a
district judge to dismiss an action for failure of the plaintiff
to prosecute is Link v. Wabash Railroad Co., 370 U.S. 626
(1962). The district judge dismissed the action there six years
after it had been filed, after postponing the trial twice, and
after plaintiff's counsel failed to appear for a pre-trial
conference.
[PAGE 9]
Trial judges have the authority to dismiss an action for failure
to prosecute, the Court held, to "prevent undue delays . . . and
to avoid congestion in [court] calendars." Id. at 629-30.
The Court found no violation of due process in the failure of the
district court to hold a hearing and dismissal of the action on
the court's own motion. Id. at 632. Here, of course, the
ALJ complied with the regulations by issuing an order to show
cause, giving Complainants an opportunity to present good cause for
their actions.
In Link, the Court also found "no merit" to the
argument that dismissal for the misconduct of one's attorney is
unjust to the party. "Petitioner voluntarily choose this
attorney . . . and he cannot now avoid the consequences of the
acts or omissions of this freely selected agent. . . . [A] party
is deemed bound by the acts of his lawyer-agent and is considered
to have 'notice of all the facts, notice of which can be charged
upon the attorney.'" Id. at 633-34 (citation omitted).
In cases applying Link, the courts of appeals have
recognized a tension between a court's power to prevent delays
and the public policy that cases should be decided on their
merits. The Fourth Circuit has said that "dismissal 'must be
tempered by a careful exercise of judicial discretion' [and]
is permitted 'only in the face of a clear record of delay or
contumacious conduct by the plaintiff.'" Reizakis v. Loy,
490 F.2d 1132, 1135 (4th Cir. 1974)(citation omitted). The
Fourth Circuit has established four factors which should be
considered before dismissing a case for failure to prosecute: 1)
the plaintiff's degree of personal responsibility; 2) the amount
of prejudice caused the defendant; 3) the presence of a drawn out
history of deliberately proceeding in a dilatory fashion; and
4) the effectiveness of sanctions less drastic than dismissal.
Herbert v. Saffell, 877 F.2d 267, 270 (4th Cir. 1989).
A key factor in many cases is whether there was a deliberate
attempt to delay, or only sloppiness or a lackadaisical attitude
of a party's attorney. Herbert v. Saffell, 877 F.2d at
270. ("[W]e do not condone the lackadaisical response [of
plaintiffs counsel to] the district court's deadlines [but] we
see no evidence of deliberate delay."); Hillig v. Commissioner
of Internal Revenue, 916 F.2d 171, 174 (4th Cir. 1990) ("The
record indicates sloppiness and a lack of communication, but it
does not support a conclusion that the delay was deliberate.")
SeealsoRoland v. Salem Contract Carriers,
Inc., 811 F.2d 1175, 1177 (7th Cir. 1987) (dismissal for
failure to prosecute under rule 41(b) should be granted "only
when there exists a clear record of delay or contumacious conduct
or when less drastic sanctions have proven ineffective.")
[PAGE 10]
The Seventh Circuit has held that deliberate abuses of the
trial court's authority by an attorney justify dismissal.
Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d
1058 (7th Cir. 1989). In a bankruptcy proceeding, Pyramid's
counsel never filed its pre-trial order, though ordered to do so
several times by the court. Finally, counsel did not appear for
trial. The court of appeals affirmed dismissal saying "[t]hese
facts represent exactly the kind of dilatory behavior courts
should not tolerate or condone." Id. at 1061. On the
failure of counsel to appear for trial, the court said
"[w]hatever the reason . . . the bankruptcy court need not have
tolerated this flagrant abuse of judicial time and resources."
Id. n.7. The court rejected Pyramid's argument that it
should be excused because the abuses were those of its attorneys,
holding that "a court may dismiss an action with prejudice
against a plaintiff for the actions of counsel [because] a party
who chooses his counsel freely should be bound by his counsel's
actions." Id. (Footnote omitted.) The court explained
"[o]therwise, the court's power to control its docket, and compel
attorneys to proceed within the time frame set by the court and
not their own would erode and eventually disappear. . . . A
trial court is entitled to say, under proper circumstances, that
enough is enough . . . and less severe sanctions than dismissal
need not be imposed where the record of dilatory conduct is
clear." Id. at 1062.
In this case, it is clear from the record that Complainants'
counsel engaged in delaying tactics without justification. As
discussed above, the failure to the Department of Labor to
respond favorably to counsel's FOIA request for the unredacted
Wage-Hour investigation report is not an acceptable reason for
refusing to proceed with discovery or go to trial. The ALJ also
acted well within his discretion in denying counsel's request for
a continuance. When the ALJ denied counsel's request on
October 30, 1985 for a protective order postponing depositions of
Complainants, counsel directed his clients not to appear, and
again directed his clients not to comply with the ALJ's order of
November 15, 1985 to appear for depositions on November 22
and 23, 1985. When the ALJ's order was read to him over the
phone the day it was issued, counsel expressed contempt for it
and the ALJ, saying he would not comply with it. Having lost
their attempts to delay the proceedings before the ALJ, as well
as their request to the Secretary for a stay pending appeal,
neither Complainants nor their counsel appeared for the hearing
or even notified the ALJ or opposing counsel that they would not
appear. This is exactly the kind of dilatory and contumacious
conduct an ALJ need not condone. Pyramid Energy, Ltd. v. Heyl
& Patterson, Inc., 869 F.2d 1058, 1061. In these
circumstances, the ALJ need not have considered whether other
sanctions short of
[PAGE 11]
dismissal were appropriate. [8]
2. Attorney's fees and costs.
Respondent has excepted to the ALJ's recommendation not to
assess attorney's fees and costs as a sanction for Complainants'
refusal to comply with discovery requests and orders, and failure
to appear for the hearing. Respondent characterizes
Complainants' counsel's conduct as "dilatory and vexatious"
justifying sanctions, including attorney's fees and costs, beyond
the sanction of dismissal. Respondent argues that attorney's
fees and costs should be assessed under Rule 11 of the Federal
Rules of Civil Procedure. [9]
I have no doubt that, had this case been tried in federal
district court, the court would have had the authority and
sufficient grounds to impose sanctions for Mr. Ratner's refusal
to comply with discovery orders, Fed. R. Civ. P. 37(b) and (d),
and refusal to comply with the order scheduling the trial, Fed.
R. Civ. P. 16(f). Indeed, some of Mr. Ratner's conduct may have
warranted holding him in contempt or imposing sanction under
Rule 11 (e.g., direct refusal to obey the ALJ's orders;
contumacious conduct in response to the ALJ's order, see note 1,
supra.)
But I have considerable doubt about the Secretary's
authority directly to order sanctions beyond an order controlling
the hearing and proceedings before the Secretary (e.g. refusal
to permit a party to testify, taking certain facts to be
established, barring an attorney from participation, or dismissal
of the matter.) [10] It seems clear, for example, that the
Secretary (or an ALJ) has no power under the ERA to issue
subpoenas or to punish for contempt for failure to comply with a
subpoena. Under the APA, an employee presiding at a hearing only
has authority to "issue subpoenas authorized by law", section
7(b), 5 U.S.C. § 556(c)(2), and there is no such
authorization in the ERA. Compare section 710 of the Civil
Rights Act of 1964 as amended, 42 U.S.C. § 2000e-9 (1982).
It is fairly well settled that "[t]his power to punish [for
contempt] is not available to federal administrative agencies."
Interstate Commerce Commission v. Brimson, 154 U.S. 447,
1893).
The ALJ believed his authority to impose sanctions derived
from the Federal Rules of Civil Procedure, incorporated by
reference in the Rules of Practice at 29 C.F.R. § 18.29(a),
and from 28 U.S.C. § 1927 (1988). The ALJ reasoned that his
orders would be enforceable under the provision of the ERA
granting jurisdiction to the district courts of actions by the
Secretary to enforce orders issued under the Act. 42 U.S.C.
§ 5851(d).
But the orders referred to in section 5851(d), those issued
under section 5851(b)(2), are only orders directed to an
employer, after a finding of a violation, to provide a remedy to
the discriminated against employee, and to pay the employee's
attorney's fees and costs. Thus, for example, the Secretary has
held that he has no authority to award attorney's fees and costs
when he has found in favor of the respondent under section 405 of
the Surface Transportation Assistance Act. Abrams v. Roadway
Express, Inc., 84-STA-2 Sec. Decision, May 23, 1985, slip op.
at 1-2.
Furthermore, I do not believe the Secretary can assume
powers not delegated to him by Congress simply by incorporating
provisions, such as the Federal Rules of Civil Procedure, in
departmental regulations. If he could, any agency could adopt
rules, for example, giving itself subpoena power, which as noted
above, it can only exercise when explicitly delegated. I think
the incorporation of the Federal Rules in 29 C.F.R. § 18.29
is for purposes of procedure and case management to fill in any
gaps where no specific provision in the Rules of Practice is
applicable. It did not give the Secretary the authority directly
to impose sanctions and penalties if not otherwise authorized by
law. Therefore, I adopt the ALJ's recommendation that costs and
attorney's fees not be assessed against Complainants, but for the
reasons discussed above rather than those in the ALJ's decision.
Accordingly, the complaints in this case are dismissed.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Mr. Ratner is deceased. See Notice of Appearance of
Daniel I. Oshtry and Stephen M. Kohn on behalf of Complainant Joy
Malpass.
[2] I must note at this point one document in the record which
the ALJ, apparently exercising great restraint, did not mention
in his recommended decision. The ALJ directed his attorney-
advisor to read his November 15, 1985 order to counsel for the
parties over the phone the same day it was issued. In a Report
of Contact (ALJ Exhibit #7) the attorney-advisor reported that
after reading the order to him, Mr. Ratner said he would not
comply with the order, that the ALJ could "go to hell", and the
ALJ could "shove. . ." the order.
[3] I would note that both briefs in the English case
were due more than a month before the scheduled hearing in this
case, and, in addition, Mr. Ratner had co-counsel in that case
who participated in the hearing and was presumably capable of
drafting those briefs.
[4] This is distinct from the determination of the Wage-Hour
Administrator, which becomes the final order of the Secretary if
a timely request for a hearing is not filed. 29 C.F.R.
§§ 24.4(d)(2)(i) and (d)(3)(i).
[5] I find no support for Complainants' position in Judge
Brissenden's ruling on a motion to a quash a subpoena in the
English case. That ruling is the law of that case only
and not binding precedent for other whistleblower cases. The
case of EEOC v. Associated Dry Goods Corp., 449 U.S. 590
(1981), holding that a charging party is not a member of the
"public" under sections 706(b) and 709(e) of the Civil Rights Act
of 1964, as amended (42 U.S.C. §§ 2000e-5(b) and 2000e-
8(e) (1982)), to whom EEOC may not disclose information in its
investigation file, is inapposite.
[6] In fact, several employees whose names did become known
(e.g. Bill Bullard, Bob Carpenter, Gary Coronado and Bob Hudson)
signed affidavits stating they have not been intimidated or
harassed by G.E. See attachments to Respondent's Motion to
Dismiss and Motion for Partial Summary Decision.
[7] I agree with the ALJ that Nolder v. Raymond Kaiser
Engineers, Inc., Case No. 84-ERA-5, Sec. Decision June 28,
1985, is not applicable here because it dealt only with the
question whether an ALJ could impose conditions on voluntary
dismissal by a complainant.
[8] In a case arising under another whistleblower law, the
employee protection provision of the Surface Transportation
Assistance Act of 1982, 49 U.S.C. app. § 2305 (1988), the
Secretary held that an ALJ has the authority to impose sanctions
for failure of a party to comply with discovery or other orders
under 29 C.F.R. § 18.6(d)(2). Gaspar v. Gammons Wire
Feeder Corp., Case No. 87-STA-5, Sec. Decision September 17,
1987, slip op. at 2-3. In Gaspar, the Secretary upheld
imposition of the sanction, for failure to comply with a
discovery order, of entering an order that "all requested
evidence would have been adverse to the Respondent, that all such
matters are taken as established adversely to the Respondent,
[and] that the Respondent may not now introduce evidence in
support of his appeal or object to the Plaintiff's evidence."
Id. See 29 C.F.R. § 18.6(d)(2)(i)-(iii).
Those regulations also provide for the sanction that "a decision
of the proceeding be rendered against the non-complying
party. . . ." 29 C.F.R. § 18.6(d)(2)(v).
[9] SeealsoStack v. Preston Trucking
Co., Case No. 89-STA-15, Sec. Decision April 18, 1990, slip
op. at 9, a case arising under the employee protection provision
of the Surface Transportation Assistance Act of 1982, 29 U.S.C.
app. § 2305, where the Secretary indicated that Rule 11 is
not applicable if a situation is provided for in the ALJ Rules of
Practice. In view of my holding discussed below that the
Secretary does not have the power under the ERA to impose
attorney's fees and costs against a complainant, I reject
Respondent's argument. Furthermore, for the same reason, as well
as the fact that Mr. Ratner is deceased, I need not consider
whether the sanctions in 29 C.F.R. § 18.36 are the only ones
which can be imposed on an attorney in these circumstances or
whether they would have been appropriate here.
[10] An ALJ, of course, has no more authority than the
Secretary under the ERA.
