Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington,
DC 20001-8002
(202) 565-5330 (202) 565-5325 (FAX)
Date: April 19, 2000
Case No. 1997-SDW-0006
IN THE MATTER OF
JOHN J. BELIVEAU, JR.
Complainant
v.
NAVAL UNDERSEA WARFARE
CENTER
Respondent
ORDER AWARDING COSTS
On March 16, 2000, I issued an order in which I found that the respondent
had failed to comply with an earlier Order Compelling Discovery. I denied
complainant's motion for a default judgment, finding it too draconian a remedy at this
preliminary stage of the proceeding but, inter alia, I invited the complainant to file a
petition for his costs, including attorneys' fees, caused by respondent's failure to comply with the
Order Compelling Discovery.
In response to this order, complainant filed a petition for attorneys' fees in
the amount of $1330.00 for the services of his co-counsel caused by respondent's failure to
comply with the discovery order. Respondent does not challenge the reasonableness of
complainant's attorneys' fee petition. However, respondent contends that "any grant of
monetary sanctions would exceed the authority of the Administrative Law Judge."
Respondent argues that Rule 37(b)(2) of the Federal Rules of Civil Procedure, which provides for
an award of expenses, including attorneys' fees, generated by an adverse party's failure to comply
with a discovery order, is inapplicable to this proceeding. Rather, respondent contends that in
accordance with §18.1(a) of this Office's Rules of Practice and Procedure, 29 C.F.R. Part
18, since §18.6(d)(2) also governs sanctions for failure to comply with discovery orders,
that subsection of the Office's Rules takes precedence over the related provision of the Federal
Rules. And respondent argues that, under §18.6(d)(2), there is no authority to award fees
and costs for a party's failure to comply with a discovery order.
[Page 2]
Assuming that §18.6(d)(2) preempts the application of Federal Rule
37(b)(2) to this proceeding, I nonetheless hold that awarding attorneys' fees and costs is a
permissible sanction under that section of our Rules. Although §18.6(d)(2) does not
specifically list an award of fees and costs as a sanction for the failure to comply with a discovery
order, the sanctions listed in subparagraphs (i) to (v) of that subsection are not intended to be the
exclusive sanctions available for a party's failure to comply with an administrative law judge's
order. For §18.6(d)(2) states that "the administrative law judge ... may take such
action in regard thereto [a party's failure to comply with an order] as is just, including but not
limited to [subparagraphs (i) - (v)]." (Emphasis added) Therefore, the administrative
law judge's authority in applying sanctions for a party's failure to comply with a discovery order
is limited only by what is just, not to the specific sanctions listed in subsections (i) to (v) of
§18.6(d)(2). It would be difficult to argue that an award of $1330.00 in attorney's fees is
not just under the facts of this case, and respondent did not attempt to do so.
Moreover, logic would dictate that if administrative law judges have the
authority to order the ultimate sanction a default judgment against the party failing to comply
with an order they also would have the authority to impose a much lesser sanction such as the
award of fees and costs. In this case, that amounts to a relatively small sum $1330.00. It is in
the interests of justice to permit administrative law judges to fashion the sanction that is most
appropriate. In this case, at this stage in the proceeding, the most appropriate sanction is an
award of complainant's expenses due to respondent's failure to comply with the discovery order.
1The Krisik case did not even
involve discovery; rather, the complainant failed to appear at the hearing in his case. As the
Secretary stated in declining to award costs to the respondent in Krisik:
There is nothing in the STAA which suggests that a complainant's abandonment of
a claim holds him responsible for a respondent's costs incurred subsequent to abandonment, but
prior to final dismissal of the complaint.