Date: MAY 19 1993

Case No.: 90-ERA-10

In the Matter of:

Mansour Guity,
    Complainant

    v.

Tennessee Valley Authority,
    Respondent

Before: John M. Vittone
    Deputy Chief Judge

Background; Complainant's response to Orders to Show Cause

   On February 17, 1993, the undersigned issued an Order to Show Cause why the stay ordered by Administrative Law Judge Rudolf L. Jansen based on the Complainant's mental incapacity to pursue the claim should not be lifted. (hereinafter "first Order to Show Cause") Because this Office had no record of the Complainant filing a response to the February 17, 1993 Order to Show Cause, the undersigned issued a second Order to Show Cause dated April 13, 1993 in which the stay of hearing in this matter was vacated and in which the Complainant was ordered to show cause why a Recommended Order of Dismissal should not be issued in this matter based on failure to comply with a lawful order, abandonment, and failure to prosecute. (hereinafter tt second Order to Show Cause")

   On April 23, 1993, this Office received the Complainants response to the second Order to Show Cause. In the response, the Complainant's counsel avers that the Complainant responded to the first Order to Show Cause on March 29, 1993 "by faxing a copy of his brief to the judge at (202) 633-0094 (copy attached)." Attached to the response is a copy of a cover letter dated March 29, 1993, a copy of the Complainants response brief to the first Order to Show Cause, and a copy of a service sheet to the brief. Neither the cover letter, the response brief, nor the service sheet are signed and the response brief and the service sheet are not dated.

   In the brief responding to the first Order to Show Cause, the Complainant's attorney argues that the Complainant has not been dilatory because his illness is beyond his control, and, that the Complainant does not intend to ask for an indefinite continuance. She also states that the Complainant "has taken every step possible to improve his condition and his treating physician and psychiatrist have continued with an optimistic prognosis of recovery to the point that he can conclude the remaining cases still at issue." She noted that the instant proceeding was to be held in abeyance until the federal court case is concluded, and that the Complainant projects this as ending prior to 1994. Hence, a request is made to maintain the instant case in suspense on the pending docket of this Office.

   The Respondent filed a response to the Complainant's response to the second Order to Show Cause via facsimile on May 10, 1993. The Respondent contends that the Complainant failed to make the "concrete showing" of why this case cannot go forward required in the first Order to Show Cause, and argues that the complaint could be dismissed for the reasons stated in the second Order to Show Cause.

Timeliness of response to first Order to Show Cause

   The Complainant's documentation of a filing via facsimile with this Office in a timely response to the first Order to Show Cause is weak. The copy of the documents purportedly faxed contains no signatures and only the cover letter is dated. Presumably, if the documents had been faxed, counsel would have retained the originals with the signatures and dates. The Complainant has provided no independent documentation such as a fax confirmation printout or a telephone bill record to support the purported filing (despite facing the serious consequence of a recommended dismissal).

   In addition, there is no indication in this record that the Complainant was given permission to file this document by facsimile. The Rules of Practice and Procedure for this Office do not provide for filing by fax, see 29 C.F.R. S 18.3, and counsel should not assume that a filing by means other than ~ho= recognized under an adjudicative body's rules of practice will be recognized. Further, the fax number purportedly used by the Complainant is the fax number for the Office's administrative office and senior judges, and not the Docket room. Hence, even if faxed on that date, it would have been a chancy proposition for such a document to have been recorded as filed by the Docket section. Indeed, the case file and the Docket computer do not contain any record of such a document being filed, and a fax transmission on that date has not found its way into the administrative file. Litigants using unapproved means of filing do so at the risk that the filing will not be duly recorded by the Docket Clerk.

    Despite the questionable documentation of the timeliness of the response and the questionable decision to file using a facsimile transmission without prior approval, given the serious consequences of a dismissal, and the fact that the Respondent also used facsimile to file its response to the response to the second Order to Show Cause, the Complainant's response to the first Order to Show Cause will be considered on the merits.

   In the second Order to Show Cause, Judge Jansen's stay of this proceeding was vacated, and the Complainant was ordered, inter alia, to show cause why the complaint should not be dismissed for failure to prosecute.¹

   Judge Jansen's stay was limited in duration to completion of Cause No. 3-87-843 in the United States District Court for the Eastern District of Tennessee at Knoxville. That District Court administratively terminated the Complainant's action in that cause on September 17, 1992. The District Judge did not accept continuing status reports on the Complainant's condition as action in the case, but held that they were merely reports on why there has been no action. He did leave the possibility open, however, for the Complainant to file for reopening within thirty days of his physician declaring that the Complainant is competent to prosecute his case.

   Although the Complainant has projected that his District Court action will be completed by the end of 1993, that is pure speculation. There is no evidence that the Complainant has made any attempt in the eight months since the District Court closed the case to move for reopening. Further, there is no guarantee that the District Court would reopen the case or that the case would be set for trial in time for completion prior to the end of this year.

   The reasons given for the District Judge's administrative termination of the Complainant's action in District Court are, at their core, the same reasons enumerated in the undersigned's

first Order to Show Cause why this case should not be set for hearing -- namely the age of the case and the lack of activity by the Complainant. In neither response to the first or second Order to Show Cause did the Complainant assert any plan to reactivate his employee protection complaint before the Department of Labor anytime sooner that 1994 (assuming that he could get his District Court action reopened and heard by that time). The complaint was filed on June 8, 1989, a hearing requested on December 11, 1989, and continued twice by Judge Jansen -- the latter continuance being granted on January 5, 1990.

¹I find that there is not sufficient evidence to conclude that the Complainant abandoned his complaint or that he failed to comply with a lawful order of the administrative law Judge. Thus, those two grounds for dismissal stated in the second Order to Show Cause will not be recommended to the Secretary.