CCASE:
TOM ROB INC.
DDATE:
19940715
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
TOM ROB, INC., WAB Case No. 94-03
Prime Contractor, et al.
BEFORE: David A. O'Brien, Chair
Ruth E. Peters, Member
DATED: July 15, 1994
ORDER DENYING RESPONDENT'S MOTION TO STRIKE
AND FOR RELIEF FROM JUDGMENT
The Board has received an application from the Respondent,
Tom Rob, Inc. ("Respondent''), to strike certain portions of its
June 21, 1994 decision and to provide Respondent with relief from
judgment based upon alleged factual and legal errors contained in
the Board's decision. The Board has considered all of the
arguments of Respondent and found them to be without merit. The
motion to strike and for relief from judgment is denied. The
Board's decision of June 21, 1994 is affirmed.
Much of Respondent's 25-page motion is based upon alleged
factual inaccuracies relied upon by the Board. Respondent must
keep in mind that no factual record has ever been made in this
case. The gist of the Board's prior ruling was to remand the
matter to the ALJ for a factfinding hearing. At that point in
time Respondent will be able to make any record desired, within
the rules of evidence and procedure.[1]
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[2] In deciding a motion for summary judgment all factual
disputes must be resolved against the moving party and any
inferences to be drawn from the facts must be viewed in the light
most favorable to the opposing party. It is no surprise,
therefore, that Respondent would vehemently disagree with the
findings of fact as set out in the Board's decision -- all
disputable factual findings went against the Respondent. The
allegedly inaccurate factual findings of the Board as set out in
Respondent's motion to strike only underscores the need to
conduct a factfinding hearing in this matter.
The Board makes two corrections to the original ruling based
upon discrepancies noted in the motion to strike. First, page 1
of the Board's decision contains a typographical error. February
18, 1985 is cited on page 1 as the date on which Respondent first
was informed of the intent to withhold funds. The date cited
should have been February 18, 1986. Secondly, the word
"throughout'' used to begin paragraph 5 on page 3 of the Board's
decision is not accurate and should be replaced with the word
"during.'' These corrections change neither the outcome of the
case, nor the Board's analysis.
Regardless of the actual date on which Respondent first was
informed of the withholding of funds, the record still reflects
that Respondent did not request an administrative hearing until
six months after the first lawsuit was filed. Respondent alleges
in the motion to strike that it was "effectively prevented'' from
requesting a hearing during the nine month period between the
actual withholding of funds and the formal notice of the
withholding by the DOL. The current record does not support this
allegation. The criminal investigation of Wayne Riggs and Robert
Thompson did not take place"throughout'' the entire time of
DOL/HUD's investigation. It did take place during part of that
same time period and could have, as alleged by DOL, caused a
delay in the prosecution of this case.
The only matter before the Board -- the ALJ's decision
granting Respondent's motion for summary judgment -- was reviewed
de novo. The Respondent cites 29 C.F.R. [sec] 7.1(e) and argues
that the Board cannot review any matter de novo except upon a
showing of extraordinary circumstances. The cited code section
states the Board may not "hear'' matters de novo except upon the
requisite showing. The Board is limited from conducting a de
novo factual hearing, not from conducting a "de novo'' legal
analysis. In granting a motion for summary judgment all findings
are made as a matter of law and therefore, subject to de novo
review.
Also, portions of the ALJ's decision striking evidence were
reviewed because it was necessary to do so in order to properly
consider the summary judgment decision and because we did not
want the ALJ to commit reversible error a second time by
continuing to prohibit relevant evidence. For example, [2]
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[3] any alleged delay caused by the criminal prosecution of Wayne Riggs
is relevant to the second prong of the Baker test dealing with the
reason for the delay. The ALJ should not have struck this relevant
factual allegation from the record and then granted a motion for summary
judgment on the grounds that no genuine issue of material fact exists.
Courts have inherent power to raise relevant matters sua sponte.
Respondent argues that the Board ignored another ground for
summary judgment as found by the ALJ. However, the ALJ's
decision to grant Respondent's motion for summary judgment was
based solely on constitutional due process grounds. A perceived
violation of 29 C.F.R. [sec] 5.11 was certainly a factor in the
ALJ's decision, but it was not a separate basis for granting the
summary judgment. In fact, Respondent never even alleged that a
violation of that regulation was, by itself, a basis for summary
judgment. See page 3, paragraph 3 of the ALJ's decision which
sets out the grounds on which summary judgment was sought.
Respondent attempts to limit the effect of many of the cases
cited by the Board by arguing that courts need to refrain from
deciding constitutional issues (when non-constitutional grounds
are available) only when the constitutionality of a statute or
regulation is at issue. Many of the cases cited by the Board
involve the constitutionality of a statute or regulation, but the
holdings of those cases are not restricted to that factual
scenario. In Public Utilities Commission v. U.S., 355 U.S. 534,
539-40 (1948), the Supreme Court held that "If . . . an
administrative proceeding might leave no remnant of the
constitutional question, the administrative remedy should be
pursued.'' The Alma court also did not restrict its holding to
situations in which the constitutionality of a statute or
regulation was at issue. Alma Motor Co. v. Timken Co., 329 U.S.
129, 132 (1946).
In Tung Chi Jen v. Immigration and Naturalization Service,
L.A., Cal., 566 F.2d 1095 (9th Cir. 1977), the court was faced
with the same legal issue as presented in this case. The
petitioner objected to the use of certain evidence against him
which allegedly had been obtained in violation of the Fourth
Amendment. An administrative tribunal decided that the
constitutional claims of the petitioner were without merit and
deported the petitioner based upon the allegedly tainted
evidence. The government had sought a continuance to submit
proof of deportability independent of the allegedly tainted
evidence. The court held that "federal courts will not resolve
serious constitutional claims if an alternative,
non-constitutional basis for decision is available." Id. at
1096. The matter was remanded for decision on the
non-constitutional issues. The Board reached the same legal
conclusion in this case.[3]
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[4] For all the reasons stated above the motion of the
Respondent to strike and for relief from judgment is denied. The
original decision of the Board is affirmed as modified above.
BY ORDER OF THE BOARD:
David A. O'Brien, Chair
Ruth E. Peters, Member[4]
