USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION XVIII -- DISMISSALS

USDOL/OALJ Nuclear and Environmental Whistleblower Digest
DIVISION XVIII -- DISMISSALS

[Last updated Oct. 30, 2013]

XVIII. Dismissals

[Editor's note: Amendments to Part 24 in 2007 at 29 C.F.R. § 24.111(c) change the manner in which requests for withdrawal are handled. Consequently, FRCP 41 is no longer applicable to withdrawals of complaints under Part 24 . See Saporito Energy Consultants, Inc. v. U.S. Nuclear Regulatory Commission , ARB No. 10-083, ALJ No. 2009-ERA-16 (ARB June 16, 2011).]

A. Voluntary dismissal

1. Applicability of Rule 41

2. ALJ dismissals under Rule 41(a) are recommended

3. ALJ must state whether dismissal is with or without prejudice

4. Dismissal without leave; Rule 41(a)(1)(i)

a. In general

b. Functional equivalent of an answer

i. Employer requested hearing

ii. Complainant requested hearing

c. Summary judgment

d. Exceptions; merits raised or suit at advanced stage

e. Dismissal without prejudice

f. Costs not awardable under Rule 41(a)(1)(i)

5. Stipulated dismissal; Rule 41(a)(1)(ii)

a. In general

b. Dismissal based on a settlement agreement

6. Withdrawal of motion to dismiss

7. Failure to file written withdrawal

8. Other matters

B. Dismissal by order of the court; Rule 41(a)(2)

1. When Rule 41(a)(2) applies

2. Rule 41(a)(2) criteria

3. Legal prejudice

4. Criteria for determining whether conditions should be imposed

5. Dismissal without prejudice does not toll time limits for filing

C. Dismissal for cause

1. Generally

2. Requirement of preliminary order to show cause

3. ALJ's dismissals are recommended, not final

4. Failure to attend hearing

5. Abandonment

6. Failure to comply with the ALJ's lawful order

7. Default judgment

8. Failure to prosecute

9. Lack of jurisdiction

10. Misconduct of party/counsel

11. Repetitive claims

[Nuclear and Environmental Whistleblower Digest XVIII A 1]
WITHDRAWAL OF COMPLAINT; ALJ PROPERLY TREATS A MOTION TO WITHDRAW THE COMPLAINT AS A MOTION TO WITHDRAW OBJECTIONS TO THE OSHA FINDINGS

In Saporito Energy Consultants, Inc. v. U.S. Nuclear Regulatory Commission , ARB No. 10-083, ALJ No. 2009-ERA-16 (ARB June 16, 2011), the Complainant filed a motion with the ALJ seeking to withdraw the complaint in accordance with FRCP 41. The ALJ construed the motion as withdrawal of objections to the OSHA findings under 29 C.F.R. § 24.111(c), and dismissed the complaint with prejudice. The Complainant appealed arguing that it was error to dismiss the complaint with prejudice. The ARB first observed that as a practical matter, it did not matter whether the dismissal was issued with or without prejudice because once the 30 day period for requesting a hearing on the OSHA findings has expired. the OSHA decision becomes final. Second, the ARB noted that Rule 41 had been applied prior to amendment of the Part 24 regulations in 2007, but that the regulation as amended and in effect at the time the instant complaint was filed, provides only two options for a party to terminate a case pending with an ALJ prior to final adjudication -- withdrawal of objections to OSHA's findings or order by filing a written withdrawal with the ALJ -- or an adjudicatory settlement. Thus, the ARB found that it was a proper exercise of the ALJ's discretion to treat the request to withdraw the complaint as a withdrawal of objections to the OSHA findings.

XVIII A 1 Voluntary dismissal; applicability and application of Rule 41

Voluntary dismissal of ERA whistleblower complaints are covered by Rule 41 of the Federal Rules of Civil Procedure. Rainey v. Wayne State University, 90-ERA-40 (Sec'y Jan. 7, 1991) (order to show cause), slip op. at 3, dismissed, (Sec'y Feb. 27, 1991). Rule 41 applies because there are no procedures for voluntary dismissals contained in either the ERA, the implementing regulations at 29 C.F.R. Part 24, or the regulations at 29 C.F.R. Part 18.

Under the ERA whistleblower provisions, a complainant is entitled to unilateral, unconditional dismissal of his or her ERA complaint in accordance with Rule 41(a)(1)(i), where the respondent has not filed the functional equivalent of either an answer to the complaint or a motion for summary judgment. Reece v. Detroit Edison, 92-ERA-1 (Sec'y Apr. 9, 1992), slip op. at 2; Rainey v. Wayne State University, 90-ERA-40 (Sec'y Jan. 7, 1991) (order to show cause), slip op. at 4, dismissed, (Sec'y Feb. 27, 1991); Hendrix v. Duke Power Co., 90-ERA-32 (Sec'y Sept. 2, 1990), slip op. at 2; Stites v. Houston Lighting & Power Co., 87-ERA-41 (Sec'y ), slip op. at 2-3. If a complainant's dismissal request is not covered by Rule 41(a)(1), then "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." Fed. R. Civ. P. 41(a)(2). See Nolder v. Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985), slip op. at 6-7, appeal dismissed, No. 85-7472 (9th Cir. 1985).

The respondent's filing of a "statement of position" document before the Wage-Hour Administrator is not an "answer" to the complaint for purposes of Rule 41(a)(1)(i). (The Secretary noted that a respondent's request for a hearing following the adverse preliminary determination of the Wage-Hour Administrator is the functional equivalent of an "answer" for purposes of Rule 41(a)(1)(i), Nolder, slip op. at 7-8, but that here the complainant requested the hearing.)

The Secretary noted that the respondent could have foreclosed the complainant's unilateral right of dismissal by filing before the ALJ the equivalent of a motion for summary judgment. See 29 C.F.R. § 18.40. Cf. D.C. Electronics, Inc. v. Nartron Corp., 511 F.2d 294, 298 (6th Cir. 1975) (rejecting the defendant's position that Rule 41(a)(1)(i) leaves it defenseless against the whim and caprice of the plaintiff).

The respondent also contended that the advanced stage of the litigation precluded voluntary dismissal without leave of the court. The Secretary, however, cited authority that admonishes against engaging in a subjective approach of considering whether an "advanced stage" of an action has been reached to find any exceptio to Rule 41(a)(1)(i). E.g., Thorp v. Scarne, 599 F.2d 1169, 1176 (2d Cir. 1979); D.C. Electronics, Inc., 511 F.2d at 297-98; Pilot Freight Carriers, Inc. v. International Brotherhood of Teamsters, 506 F.2d 914, 916-17 (5th Cir. 1975), cert. denied, 422 U.S. 1048 (1975). She concluded that this case was not so "extreme" as to warrant an exception, Thorp, 599 F.2d at 1176, given that the merits of the case were never squarely raised, nor did the considerable time and effort expended by both parties in discovery extend the suit into an "advanced stage." Id. ; Sheldon v. Amperex Electronic Corp., 52 F.R.D. 1, 7 (E.D.N.Y. 1971), aff'd, 449 F.2d 146 (2d Cir. 1971). Mere expenditure of time and money by the respondent does not bar the complainant's entitlement, as of right, to dismiss without prejudice. Johnson Chemical Co., Inc. v. Home Care Products, Inc., 823 F.2d 28, 31 (2d Cir. 1987).

Mosbaugh v. Georgia Power Co., 90-ERA-58 (Sec'y Sept. 23, 1992).

[Nuclear and Environmental Whistleblower Digest XVIII A 1]
VOLUNTARY DISMISSAL BEFORE ARB; APPLICATION OF FRAP 42(b)

Where Complainant filed a notice of dismissal, with prejudice, while the case was pending before the ARB, the ARB used Fed. R. App. P. 42(b) to construe Complainant's notice as a motion for voluntary dismissal, granted the motion, and dismissed the complaint. Doody v. Centerior Energy , ARB No. 00-051, ALJ No. 1997-ERA-43 (ARB July 26, 2001).

WITHDRAWAL; RESULTS OF ARBITRATION
[N/E Digest XVIII A 1]

In Coleman v. Duquesne Light Co. , 96-ERA-9 (ARB July 3, 1996), Complainant notified the ALJ that the issue of his discharge had been rescinded through arbitration and that Complainant wished to withdraw his complaint without prejudice. The Board accepted the withdrawal pursuant to Rule 41 of the Federal Rules of Civil Procedure.

[N/E Digest XVIII A 1]
WITHDRAWAL OF COMPLAINT BEFORE ALJ; ORDER TO SHOW CAUSE

In Jorgensen v. Guaranteed Muffler, Tire & Brake Service Center, Inc ., 96-CAA-5 (ALJ Oct. 24, 1996), Complainants filed with the ALJ a motion to withdrawn their complaint. The ALJ found that the complaint should be dismissed pursuant to 29 C.F.R. § 24.5(e)(4). The Wage and Hour Division had found that discrimination was not a factor in the actions comprising the complaint.

The Board issued an order to show pursuant to 29 C.F.R. § 24.5(e)(4)(ii). The parties did not respond to the order, and the case was dismissed. Jorgensen v. Guaranteed Muffler, Tire & Brake Service Center, Inc ., 96-CAA-5 (ARB Nov. 27, 1996).

[Editor's note: This approach under section 24.5(e)(4) is a departure from the Secretary's practice of handling voluntary dismissals pursuant to FRCP 41. See Nunn v. Duke Power Co. , 84-ERA-27 (Sec'y Sept. 29, 1989)(because section 24.5(e) is labeled "Dismissal for Cause", that regulation is not applicable to voluntary dismissals); see generally N/E Digest at XVIII A 1]

VOLUNTARY DISMISSAL; COMPLAINANT'S DECISION NOT TO CONTEST ALJ'S RECOMMENDED DECISION AND ORDER CONSTRUED AS VOLUNTARY DISMISSAL
[N/E Digest XVIII A 1]

Where the Complainant filed a statement with the Secretary that he did not want to contest the ALJ's Recommended Decision and Order to dismiss his case, the Secretary treated this motion to withdraw the complaint as a voluntary dismissal governed by Fed. R. Civ. P. 41. Plumlee v. Exxon Chemical Co. , 95-TSC-11 (Sec'y Apr. 15, 1996).

XVIII A 1 Applicability of Rule 41

In Bradish v. The Detroit Edison Co., 94-ERA-20 (Sec'y Aug. 8, 1994), the Secretary dismissed the complaint without prejudice, pursuant to the Complainant's request for withdrawal. Such requests for withdrawal are treated as requests for voluntary withdrawal under Rule 41(a)(1)(ii) of the Federal Rules of Evidence, since neither the Department of Labor regulations nor the ERA specifies any procedure for voluntary withdrawals. Accordingly, the Complainant's written request, together with the Respondent's written agreement, satisfy the requirements of Rule 41.

XVIII A 1 Rule 41 and not section 24.5(e)(4) applies to voluntary dismissals

In Nolder v. Raymond Kaiser Engineers, Inc., 84- ERA-5 (Sec'y June 28, 1985), the Secretary determined that Fed. R. Civ. P. is to be applied where voluntary dismissals are sought, but left open the question of whether section 24.5(e)(4)(ii) was applicable. In Nunn v. Duke Power Co., 84-ERA-7 (Sec'y Sept. 29, 1989), the Secretary concluded that because section 24.5(e) is labeled "Dismissal for Cause," that regulation was not applicable to voluntary dismissals.

XVIII A 1 Applicability of Rule 41

In Bradish v. The Detroit Edison Co., 94-ERA- 20 (Sec'y Aug. 8, 1994), the Secretary dismissed the complaint without prejudice, pursuant to the Complainant's request for withdrawal. Such requests for withdrawal are treated as requests for voluntary withdrawal under Rule 41(a)(1)(ii) of the Federal Rules of Evidence, since neither the Department of Labor regulations nor the ERA specifies any procedure for voluntary withdrawals. Accordingly, the Complainant's written request, together with the Respondent's written agreement, satisfy the requirements of Rule 41.

XVIII.A.1. Withdrawal of single count

In Mitchell v. Arizona Public Service Co., 92-ERA- 28 (ALJ Apr. 13, 1992), later dismissed based on settlement , (Sec'y June 28, 1993), the Complainant sought voluntary dismissal of one count of a multiple count complaint, referring as authority to Fed. R. Civ. P. 41(a)(1)(i). The ALJ, noted that the better Federal authority indicated that a motion to dismiss a single count of a multi-count complaint should be treated as an amendment to the complaint under Fed. R. Civ. P. 15(a). See Gronholz v. Sears, Roebuck & Co., 836 F.2d 515 (Fed. Cir. 1987); contra Oswalt v. Script, Inc., 616 F.2d 191 (5th Cir. 1980).

XVIII A 1 Voluntary dismissal

Rule 41 of the Federal Rules of Civil Procedure, and not section 24.5(e)(4) of the regulations, governs voluntary dismissals. Avery v. B & W Commercial Nuclear Fuel Plant, 91-ERA-8 (Sec'y Oct. 21, 1991).

XVIII A 1 Dismissal without leave

The regulations implementing the Clean Air Act provide only for dismissals for cause, see 29 C.F.R. § 24.5(e)(4), and do not provide for voluntary dismissals of complaints. Nor are voluntary dismissals provided for in the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18, which are applicable to adjudicative proceedings before ALJs of the Department of Labor in any situation not provided for or controlled by rules of special application, such as Part 24. 29 C.F.R. § 18.1(a). Accordingly, where a complaint in a case arising under Part 24 has sought a voluntary dismissal, Rule 41(a) of the Rules of Civil Procedure for the United States District Courts has been applied. See Nolder v. Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985), slip op. at 6-8.

Where the Respondent has filed neither an answer nor a motion for summary judgment, Rule 41(a)(1)(i) is the applicable rule.

Keelan v. Consolidated Edison Co. of New York, Inc., 88-CAA-3 (Sec'y Sept. 29, 1989); Passanisi v. Consolidated Edison Co. of New York, Inc., 88-CAA-4 (Sec'y Sept. 29, 1989); Cornish v. Consolidated Edison Co. of New York, Inc., 88-CAA-5 (Sec'y Sept. 29, 1989); Lorenz v. Law Engineering, Inc., 90-CAA-1 and 2 (Sec'y Mar. 12, 1991).

XVIII A 2 Rule 41(a) dismissals effective only by final order of the Secretary

Under the regulations implementing the ERA, disposition of complaints, including Fed. R. Civ. P. 41(a)(1)(i) dismissals, can only be effected by the final order of the Secretary. Gergans v. Edward Hines Hospital, 94-ERA-26 (Sec'y Dec. 7, 1994).

XVIII. A. 2. ALJ dismissals under Rule 41(a) are recommended

Pursuant to 29 C.F.R. § 24.6, the disposition of complaints, including Rule 41(a)(1)(i) dismissals, can be effected only by final order of the Secretary. Haymes v. D.P. Associates, Inc., 94-SDW-1 (Sec'y Aug. 16, 1994).

XVIII.A.2. Recommended order of dismissal

In Clarke v. Florida Power Corp., 94-ERA-18 (Sec'y July 21, 1994) (order to show cause), the ALJ erred in stating that his order (pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure) was a final order. Under the regulations implementing the ERA, an ALJ is authorized to issue only a recommended decision, which must be reviewed by the Secretary before it becomes final. 29 C.F.R. § 24.6 (1993).

XVIII A 2 Rule 41(a)(1)(i) dismissals are final only after order of the Secretary

Disposition of ERA complaints, including Rule 41(a)(1)(i) dismissals, can be effected only be final order of the Secretary. The Secretary, therefore, disagreed with Respondent's contention that the dismissal "was effective upon its filing . . . . The proceeding ended at the time the notice of dismissal was filed . . . ." Brock v. Tennessee Valley Authority, 90-ERA-19 (Sec'y June 28, 1993).

XVIII. A. 2. ALJ dismissals under Rule 41(a) are recommended

[Nuclear and Environmental Digest XVIII A 3]
WITHDRAWAL; STANDARD FOR DISMISSAL WITH OR WITHOUT PREJUDICE

In Saporito v. FedEx Kinko's Office and Print Services, Inc. , ARB No. 06-043, ALJ No. 2005-CAA-18 (ARB Mar. 31, 2008), a complaint filed under several environmental whistleblower laws, the ALJ erroneously treated the Complainant's withdrawal under the regulatory procedure for STAA whistleblower cases, in which the withdrawal is treated as a withdrawal of objections to the OSHA findings. In Part 24 cases, there is no such regulatory requirement, and the standard for dismissals under FRCP 41 is used instead. For the dismissal to be with prejudice, the opposing party must show that it would suffer legal harm or prejudice if the case was dismissed without prejudice. The mere prospect of a second lawsuit or a tactical gain by the opposing party, however, is not plain legal prejudice. Relevant factors include the effort and expense of trial preparation, excessive delay and lack of diligence by the complainant in prosecuting the action, insufficient explanation for the need to take a dismissal, and whether the respondent has filed a motion for summary judgment. In the instant case, the ARB found that a dismissal with prejudice was proper because the Respondent had been prejudiced. The Respondent had expended effort and expense in preparation of the case before the ALJ (including filing an answer to the complaint, affirmative defenses supported by affidavits, and a motion for enlargement of time). The Complainant had delayed and lacked diligence in responding to the ALJ's order to show cause about the timeliness of the complaint. Although previously advised by the ALJ to seek counsel, the Complainant's only explanation for the withdrawal was that he was at an "economic disadvantage" because he could not afford an attorney. Finally, the Complainant's motion to withdraw came at a late stage in the litigation, when he was facing a potential adverse ruling on the merits of his case.

XVIII A 3 Requirement that ALJ state whether dismissal is with or without prejudice

In Stites v. Houston Lighting & Power Co., 87- ERA-41 (Sec'y Sept. 29, 1989), the ALJ granted the complainant's motion to dismiss, which had requested that the dismissal to be without prejudice, but stated that because of the limitation period for filing an ERA complaint, "the grant of Complainant's Motion herein effectively precludes any future legal remedy."

The Secretary on review noted that it appeared that the ALJ considered it immaterial whether the dismissal was with or without prejudice. Because a dismissal with prejudice results not only in a complainant being time barred from filing again under section 210 of the ERA, but "the doctrine of res judicata would bar Complainant from ever bringing a claim of retaliation against Respondent based on these facts in [a] state or any other court." Slip op. at 3, quoting Nolder v. Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985)), slip op. at 12.

Hence, it is necessary when granting a motion to dismiss to state clearly whether it is granted with or without prejudice.

[Nuclear & Environmental Digest XVIII A 3]
VOLUNTARY DISMISSAL; DISMISSAL WILL BE WITH PREJUDICE ONLY IF RESPONDENT DEMONSTRATES THAT IT WILL SUFFER PLAIN, LEGAL PREJUDICE

In Anderson v. DeKalb Plating Co. Inc. , ARB No. 98-158, ALJ No. 1997-CER-1 (ARB July 27, 1999), the ALJ had issued an order recommending that Complainant's petition to withdraw her request for hearing be granted, and that the complaint be dismissed with prejudice. On review, the ARB had modified the order to be without prejudice, and Respondent subsequently filed a request that the order be changed back to dismissal with prejudice.

The ARB noted that FRCP 41 governs voluntary dismissals of environmental whistleblower cases. The ARB wrote that "[b]ecause a dismissal with prejudice prevents a complainant from reinstituting a case, Ball v. City of Chicago , 2 F.3d 753 (7th Cir. 1993), it is not a sanction to be imposed lightly. Indeed, Fed. R. Civ. Pro. Rule 41(a) (2), providing for voluntary dismissal by court order, assumes that a voluntary dismissal is without prejudice unless the order states otherwise." The ARB, in rejecting Respondent's request, held that

to prevail in its request that the case be dismissed with prejudice, [Respondent] must establish that it will suffer plain, legal prejudice if the case is dismissed without prejudice. Factors to be considered in determining whether a respondent will suffer legal prejudice include the respondent's effort expended in and the expense of trial preparation, the complainant's excessive delay and lack of diligence in prosecuting the action, insufficient explanation for the need to take a dismissal and the fact that respondent has filed a motion for summary judgment.

Anderson , 1997-CER-1 @ 2 (citations omitted).

XVIII A 4 a Request for hearing considered equivalent of answer

In ERA whistleblower proceedings, a request for a hearing is considered the equivalent of an answer, Nolder v. Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985), slip op. at 8. A request for a hearing is like an answer in that it joins issue on the merits. Cable v. Arizona Public Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992), slip op. at 3, 5 n.5.

XVIII A 4 a Voluntary dismissal

Where the complainant seeks voluntary dismissal prior the hearing of the case, it is error for the ALJ to dismiss the case under the authority of 29 C.F.R. § 24.5(e)(4)(i)(A). Stites v. Houston Lighting & Power Co., 87-ERA-41 (Sec'y Sept. 29, 1989) (since the record indicated that the respondent had not filed an answer or a motion for summary judgment, the proper authority for the dismissal was Fed. R. Civ. P. 41(a)(1)(i). See Nolder v. Kaiser Engineers, Inc., 84- ERA-5 (Sec'y June 28, 1985)).

XVIII. A. 4. a. Dismissal without leave; generally

In Clarke v. Florida Power Corp., 94-ERA-18 (Sec'y Sept. 7, 1994), the Secretary issued an order to show cause why the case should not be dismissed based on the Complainant's earlier notice under Fed. R. Civ. P. 41(a)(1)(i). Neither party responded, and the case was dismissed.

XVIII A 4 a Rule 41(a)(1) dismissal

A CAA whistleblower action may be dismissed by the complainant pursuant to Fed. R. Civ. P. 41(a)(1), by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment. Rullo v. Standard Chlorine of Delaware , 94-CAA-16 (Sec'y Feb. 16, 1995).

XVIII A 4 a No answer or motion for summary judgment

Where Respondent had not filed the functional equivalent of either an answer or a motion for summary judgment, Complainant was entitled to dismissal without prejudice in accordance with Fed. R. Civ. P. 41(a)(1)(i). Silver v. Carolina Power & Light Co., 93-ERA-33 (Sec'y Sept. 29, 1993); Landers v. Carolina Power & Light Co., 93-ERA- 27 (Sec'y Sept. 29, 1993).

XVIII A 4 a Voluntary dismissal

Where the record indicates that the respondent neither filed an answer nor a motion for summary judgment, the complainant's request for dismissal is properly handled under Fed. R. Civ. P. 41(a)(1)(i). Hendrix v. Duke Power Co., 90-ERA-32 (Sec'y Sept. 25, 1990) (ALJ erroneously used Rule 41(a)(2)).

To the same effect: Cooper v. Bechtel Power Corp., 88-ERA-2 (Sec'y Sept. 29, 1989) (Secretary dismissed without prejudice instead of ALJ's recommendation to dismiss with prejudice); Ryan v. Northeast Utilities, 88-ERA-6 (Sec'y Sept. 29, 1989) (Respondent's counsel advised Secretary that the respondent did not object and that the complainant had voluntarily withdrawn his complaint).

XVIII A 4 a Voluntary dismissal

Dismissal without prejudice is appropriate where the requirements for voluntary dismissal under Fed. R. Civ. P. 41(a)(1)(i) are satisfied. In the instant case the respondent withdrew its opposition to Complainant's Notice of Dismissal after it became clear that the Notice of Dismissal was filed prior to Respondent's service of its Answer. The withdrawal of opposition resulted in the Secretary not reaching the question of whether once an Answer is served, an ERA case can only be dismissed by order the court pursuant to Rule 41(a)(2) (with the result that Complainant would be required as a condition of dismissal to pay the employer's attorney's fees and costs in defending the claim) or whether the filing of an answer in an ERA case never precludes a Rule 41(a)(1)(i) voluntary dismissal. Tabor v. Vermont Yankee Nuclear Power Corp., 91-ERA-19 (Sec'y Sept. 26, 1991).

XVIII A 4 a Voluntary dismissal under Rule 41(a)(1)(i)

Where a complainant in a case arising under 29 C.F.R. Part 24 seeks voluntary dismissal, Fed. R. Civ. P. 41(a) is applied. When the Respondent did not file the functional equivalent of either an answer to the complaint or a motion for summary judgment, Rule 41(a)(1)(i) applies. Gergans v. Edward Hines Hospital, 94-ERA-26 (Sec'y Dec. 7, 1994).

XVIII. A. 4. a. Dismissal without leave; generally

XVIII A 4 a Dismissal without leave

Where Respondent did not file the functional equivalent of either an answer to the complaint or a motion for summary judgment, and raised no objection to Complainant's motion for dismissal, the case is properly dismissed without prejudice pursuant to Rule 41(a)(1)(i). Saporito v. Houston Lighting and Power Co., 92-ERA-38 and 45 (Sec'y June 28, 1993).

XVIII A 4 a Notice of voluntary dismissal; Respondent does not respond

The Secretary dismissed complaints against each Respondent without prejudice based on Complainant's Notice of Voluntary Dismissal, pursuant to Fed. R. Civ. P. 41(a)(1)(i). The requirements for dismissal under the Rule 41(a)(1)(i) was deemed satisfied since neither Respondent filed any response to the Notice of Voluntary Dismissal.

Sylvester v. ABB/Power Systems Energy Services, Inc., 93-ERA-51 (Sec'y Mar. 21, 1994).

XVIII A 4 b i Voluntary dismissal

Where the respondent did not aver that it had filed the functional equivalent of an answer to the complaint or a motion for summary judgment, the Secretary adopted the ALJ's recommendation that the case be dismissed without prejudice pursuant to the complainant's unopposed Notice of Voluntary Dismissal. The complainant cited Fed. R. Civ. P. 41(a)(1)(i) and Stites v. Houston Lighting & Power Co., 87-ERA-41 (Sec'y Sept. 29, 1989). Cable v. Arizona Public Service Co., 91-ERA-29 (Sec'y May 29, 1991).

XVIII A 4 b i Respondent's request for hearing is functional equivalent of answer

In Young v. CBI Services, Inc., 88-ERA-19 (Sec'y Aug. 4, 1994), the Complainant filed a notice of voluntary dismissal. The ALJ recommended dismissal without prejudice under Fed. R. Civ. P. 41(a)(2). The ALJ applied Rule 41(a)(2) rather than Rule 41(a)(1) because the ALJ found that the documents filed by the Respondent constituted the functional equivalent of an answer. The Secretary agreed that Rule 41(a)(2) applied, but held that Respondent's request for a hearing following the adverse preliminary determination of the Wage and Hour Administrator constitutes an answer for purposes of Rule 41.

The Secretary also indicated that since the Respondent raised no objection to the Complainant's notice of voluntary dismissal, and no reason for denying the dismissal was apparent from the record, dismissal without prejudice was proper.

XVIII A 4 b i "Functional equivalent of an answer"

In Demlong v. Arizona Public Service Co., 93-ERA-29 (ALJ Aug. 20, 1993), Respondent opposed Complainant's motion to dismiss without prejudice under Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure, contending that it filed the functional equivalent of an answer when it responded to ESA's investigatory inquiry.

The ALJ ruled that the Complainant's complaint filed with ESA was 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 ESA simply initiates an investigation, 29 C.F.R. § 24.4, which the ALJ ruled was at the investigatory and not the adjudicatory level. The ALJ ruled that the matter was at the adjudicatory level only after a request for a hearing with the Chief ALJ is filed under 29 C.F.R. § 24.4(d)(2).

The ALJ also ruled that Respondent had not filed with OALJ the functional equivalent of an answer, citing the definition of an "answer" provided by 29 C.F.R. § 18.5(d).

Accordingly, the ALJ permitted Complainant to voluntarily dismiss the claim.

XVIII A 4 b i "Functional equivalent" of an answer

In Young v. CBI Services, Inc., 88-ERA-19 (ALJ Apr. 6, 1993), the Complainant sought a voluntary dismissal after the ALJ issued an Order to Show Cause why the Secretary's findings in an earlier case should not be given res judicata [or collateral estoppel] effect in the instant proceeding. The complaints involved the same facts and circumstances, except that the gravamen of the first complaint was wrongful termination while the second was refusal to rehire.

Noting the ruling stated by the Secretary in Mosbaugh v. Georgia Power Co., 90-ERA-58 (Sec'y Sept. 23, 1992), that complainant is entitled to a unilateral, unconditional dismissal without prejudice of his or her employment protection complaint under section 5851 in accordance with Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure where the respondent has not filed the functional equivalent of either an answer to the complaint a motion for summary judgment, the ALJ in Young construed the term "functional equivalent of an answer to the complaint."

The ALJ concluded that although a formal answer is not required in an employee protection administrative adjudication under 29 C.F.R. Part 24, where documents filed by the respondent nevertheless contain the elements of an answer as set out in 29 C.F.R. § 18.5(d)(2), the respondent has filed the "functional equivalent of an answer" for purposes of determining whether a voluntary dismissal should be without order of the court pursuant to Rule 41(a)(1)(i).

In Young, the ALJ reviewed the respondent's filings and concluded that since they set forth admissions and denials and facts pertinent to the respondent's defense, the respondent had made the functional equivalent of an answer. Accordingly, the ALJ considered whether terms and conditions should be placed on the dismissal under the analysis detailed in Nolder v. Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985) and Stokes v. Pacific Gas & Electric Co., 84- ERA-6 (Sec'y July 26, 1988).

[Editor's note: Young involved the situation where the Complainant requested the hearing. In contrast, where the Respondent requests the hearing, there is no conventional civil law answer, and the respondent's hearing request is considered the equivalent of an answer. Hence, if the complainant requests dismissal after the respondent has requested a hearing, Rule 41(a)(1) is not applicable. See Nolder , slip op. at 7-8.

The Secretary has held that in an STAA case, the respondent's denial of allegations made in the complaint are in effect the filing of an answer for purposes of determining whether to apply Rule 41(a)(1). Hester v. Blue Bell Services, 86-STA-11 (Sec'y July 9, 1986). By implication, the Secretary has also held that in an STAA case, the respondent's objections to the preliminary findings constitute an answer. Sharp v. James Helwig & Son, Inc., 90-STA-30 (Sec'y Jan. 18, 1991).

XVIII A 4 b ii Complainant requested hearing/answer

Carter v. Los Alamos National Laboratory , 93- CAA-10 (Sec'y Mar. 21, 1994).

The Secretary dismissed the case without prejudice based on Complainant's Notice of Withdrawal Without Prejudice since the Respondent did not file either an answer to the complaint or a motion for summary judgment prior to the Notice. The Secretary noted that the filing of a request for hearing is equivalent to and answer, which in this case, was filed by the Complainant.

XVIII A 4 b 2 Respondent's inability to file an answer does not make Rule 41(a)(1)(i) inapplicable

The fact that a respondent is not able to request a hearing does not render Rule 41(a)(1)(i) inapplicable in ERA proceedings. See Hendrix v. Duke Power Co., 90-ERA-32 (Sec'y Sept. 25, 1990), slip op. at 2 n.2 (Rule 41(a)(1)(i) dismissal available where complainant requested hearing). The respondent had noted that in ERA whistleblower proceedings, a request for a hearing is considered the equivalent of an answer, Nolder v. Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985), slip op. at 8, and hence that it was precluded from requested a hearing where the Administrator's notice of determination was in its favor. Cable v. Arizona Public Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992).

XVIII A 4 b 2 Voluntary dismissal

Where the parties agreed that the complainant would withdraw his ERA case and resolve his complaint against the respondent through arbitration, the withdrawal was governed by Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure.

In ERA cases, the filing of a request for hearing by the employer is the equivalent of an answer for purposes of Rule 41. See Nolder v. Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985), slip op. at 8. Where the complainant filed the request for a hearing, his withdrawal request falls within Rule 41(a)(1)(i). Cooper v. Bechtel Power Corp., 88-ERA-2 (Sec'y Sept. 29, 1989).

Hettinger v. GPU Nuclear Corp., 87-ERA-7 (Sec'y ar. 15, 1991).

XVIII A 4 c Voluntary dismissal

Reid v. Niagara Mohawk Power Corp. ,
93-ERA-3 (Sec'y Feb. 14, 1994)

The Secretary issued a final order granting Complainant's request for voluntary dismissal without prejudice and denying Respondent's motion for summary judgment on the merits where the Complainant submitted his request prior to Respondent's filing of summary judgment motion. Complainant also submitted a timely response to the ALJ's order to show cause for failure to appear at the hearing which detailed Complainant's medical condition and difficulty in retaining affordable counsel.

XVIII A 4 c Decision not to file summary judgment motion

A dismissal without prejudice under Rule 41(a)(1)(i) is not rendered unavailable to a complainant where the respondent decides that filing a summary judgment motion would not be prudent. The respondent contended that it would not have been prudent to file a summary judgment motion before having an opportunity to depose the complainant, and that the complainant refused to appear for his deposition. Cable v. Arizona Public Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992).

XVIII A 4 d Strict application of Rule 41(a)(1)(i); advanced stage of litigation

In Cable v. Arizona Public Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992), the Secretary declined to apply a loose interpretation of voluntary dismissal without prejudice under Rule 41(a)(1)(i) based on the argument that the case had reached an advanced stage. Noting that the case cited by the respondent, Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105 (2d Cir. 19xx), cert. denied, 345 U.S. 964 (1953), has received a "cool reception", the Secretary concluded that the only exceptions to Rule 41(a)(1)(i) are where the merits have been raised or a suit has reached an advanced stage, as in Harvey , where an evidentiary hearing was held and the record consisted of 420 pages. See Hamilton v. Shearson- Lehman Am. Express, Inc., 813 F.2d 1532, 1534 (9th Cir. 1987). The Secretary held that although there had been considerable procedural posturing in the instant case, the merits of the complainant had not yet been addressed, and that the case had not had reached as advanced a stage as in Harvey .

XVIII.A.4.e. Dismissal with or without prejudice

In Clarke v. Florida Power Corp., 94-ERA-18 (Sec'y July 21, 1994) (order to show cause), the ALJ concluded that the case should be dismissed without prejudice pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure based on Complainant's May 16, 1994 notice of withdrawal; representations made by counsel during a May 18 conference call; and Respondent's ay 18, 1994 letter expressly stipulating to dismissal pursuant to Rule 41(a)(1)(ii).

The Secretary concluded that the intent of the parties in regard to whether the dismissal was to be with or without prejudice was unclear. Noting that it appeared that Complainant was entitled to unconditional dismissal of his ERA complaint in accordance with Rule 41(a)(1)(i), the Secretary the parties to show cause why the case should not be dismissed accordingly.

In Clarke v. Florida Power Corp., 94-ERA-18 (Sec'y Sept. 7, 1994) (final order), the Secretary ordered the case dismissed without prejudice because neither party responded to the order to show cause.

[Nuclear & Environmental Digest XVIII A 4 e]
WITHDRAWAL OF CERCLA WHISTLEBLOWER COMPLAINT; DISMISSAL IS NOT WITH PREJUDICE UNLESS SO REQUESTED

In Anderson v. DeKalb Plating Co., Inc. ,1997-CER-1 (ARB July 28, 1998), Complainant filed a request to withdraw the complaint. The ALJ properly recommended dismissal under Rule 41 of the Federal Rules of Civil procedure, but erred in recommending dismissal with prejudice in the absence of a request for dismissal with prejudice. The ARB instead ordered dismissal without prejudice.

XVIII A 4 e Dismissal without prejudice as bar

The Secretary dismissed the complaint without prejudice in accordance with the Complainant's written request to withdraw the complaint and with the Respondent's approval of the request.

Voluntary dismissals of this nature are governed by Fed. R. Civ. P. 41(a). The rule provides that "unless otherwise stated in the notice of dismissal . . . , the dismissal is without prejudice. . ." A dismissal without prejudice operates only as a bar to the filing of another complaint under the same statute. Thus, the Complainant is free to pursue her claims in other forums under a different statute or a common law theory.

Brown v. Tennessee Valley Authority, 89-ERA-2 (Sec'y Mar. 21, 1994).

XVIII A 4 e Rule 41(a)(1)(i) dismissal; generally without prejudice

Where there was no evidence that the Complainants contemplated dismissal with prejudice in taking a voluntary dismissal under Rule 41(a)(1)(i), it was error for the ALJ to recommend dismissal with prejudice. The express language of Rule 41(a)(1)(i) contemplates dismissal without prejudice. See also generally Thompson v. United States Dept. of Labor, 885 F.2d 551 at 556, 557 (9th Cir. 1989).

Lorenz v. Law Engineering, Inc., 90-CAA-1 and 2 (Sec'y Mar. 12, 1991).

XVIII A 4 f Costs not awardable in Rule(a)(1)(i) situation

In Lujan v. Los Alamos National Laboratory, 93-CAA- 8 (ALJ Nov. 24, 1993), Respondent filed a bill of costs pursuant to Rule 54 of the Federal Rules of Civil Procedure and 29 U.S.C. §§ 1920 and 1924, contending that in the Tenth Circuit, costs are awardable in voluntary dismissals without prejudice, citing Mobile Power Enterprises, Inc. v. Power Vac, Inc., 496 F.2d 1311, 1312 (10th Cir. 1974) and Nolen v. Henderson National Corp., Nos. 91-6299, 91-6314 (10th Cir. Feb. 5, 1993) (available at 1993 U.S. App. LEXIS 18955). The ALJ had earlier entered an Order of Dismissal without prejudice pursuant to Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure.

The ALJ found that the cases cited by Respondent were inapposite because they involved voluntary dismissals without prejudice by order of the court pursuant to Rule 41(a)(2). While Rule 41(a)(2) provides for the court to impose terms and conditions, including costs, as are appropriate, Rule 41(a)(1) does not.

XVIII A 5 a Rule 41(a)(1)(ii) dismissal

Where the parties jointly file a Motion to Dismiss with Prejudice, dismissal with prejudice under Fed. R. Civ. P. 41(a)(1)(ii) is appropriate. Luther v. City of Tyler, 92-TSC-4 (Sec'y Aug. 25, 1993).

[Nuclear and Environmental Digest XVIII A 5 a]
NOTICE OF WITHDRAWAL OF APPEAL MUST SPECIFY WHETHER IT IS GROUNDED IN WITHDRAWAL OF OBJECTIONS OR IN AN ADJUDICATORY SETTLEMENT

In Hamilton v. PBS Environmental Buidling Consultants, Inc. , ARB No. 11-010, ALJ No. 2009-CER-3 (ARB Feb. 28, 2011), OSHA had dismissed the Complainant's complaint under several environmental whistleblower laws, but the ALJ awarded reinstatement and other remedies. The Respondent petitioned for ARB review, but later filed a stipulated dismissal of its petition for review. The ARB ordered the Respondent to state whether it was withdrawing its objections to the ALJ's findings and order, or whether the parties had entered into an adjudicatory settlement, in which case the parties are required to file a copy of the settlement for review. The Respondent replied that it was withdrawing its objections. The ARB thus granted the Respondent's notice of withdrawal of objections to the ALJ's D. & O., and stated that the ALJ's D. & O. thereby became the final decision of the Secretary of Labor.

XVIII A 5 a Stipulated dismissal

Where a complainant seeks a voluntary dismissal with prejudice and the respondent states that it does not oppose dismissal with prejudice and that it seeks no costs or fees, the matter should be treated as a stipulated dismissal and the complaint dismissed pursuant to Rule 41(a)(1)(ii).

In such a situation it is error to use 29 C.F.R. § 24.5(e)(4), and the issuance of an order to show cause is not called for.

Nunn v. Duke Power Co., 84-ERA-7 (Sec'y Sept. 29, 1989).

XVIII A 5 a Stipulated dismissal

Since neither the ERA nor its implementing regulations at 29 C.F.R. Part 29 provides for voluntary dismissals of complaints, where a complainant in a case arising under Part 24 has sought a voluntary dismissal, Rule 41(a) of the Federal Rules of Civil Procedure for the United States District Courts has been applied. See Caccavale v. Northeast Utilities, 91-ERA-3 (Sec'y Dec. 18, 1990); Nolder v. Raymond Kaiser Engineers, Inc., 84- ERA-5 (Sec'y June 28, 1985).

Where the complainant files a motion, signed by the parties and their counsel, states that withdrawal of the complaint does not involve any settlement, and requests dismissal with prejudice, the motion with the respondent's written concurrence constitutes a stipulation of dismissal by the parties satisfying the requirements of Fed. R. Civ. P. 41(a)(1)(ii).

Galata v. Tennessee Valley Authority, 91-ERA-28 (Sec'y May 20, 1992).

To the same effect: Hall v. Teledyne Wah Chang Albany, 91-ERA-30 (Sec'y Aug. 30, 1991); Denayer v. Tennessee Valley Authority, 91-ERA-32 (Sec'y July 22, 1991); Wagerle v. Trustees of the University of Pennsylvania, 91-ERA-48 (Sec'y Mar. 9, 1992); Weisenstein v. Tennessee Valley Authority, 89-ERA-4 (Sec'y Oct. 10, 1989) (no discussion of whether a settlement was involved); Scott v. American Protective Services, Inc., 89-ERA-35 (Sec'y Apr. 26, 1990) (ambiguity whether withdrawal was based on settlement obliged Secretary to inquire further; when counsel for the respondent responded that no settlement had been involved, the Secretary permitted the withdrawal under Rule 41(a)(1)(ii)); Meier v. Brown & Root, 89-ERA-44 (Sec'y Mar. 28, 1990); Carmack v. Tennessee Valley Authority, 88-ERA-18 (Sec'y Feb. 28, 1991) (dismissal under Rule 41(a)(1)(ii) appropriate after counsel for respondent submitted clarification of a "Stipulation of Dismissal" indicating that the withdrawal was not based on a settlement); Millet v. Anco Insulations, Inc., 88-ERA-35 (Sec'y Sept. 29, 1989); Ryan v. Pacific Gas & Electric Co., 87-ERA-32 (Sec'y Aug. 9, 1989).

To the same effect, but dismissing without prejudice: Kleiman v. Florida Power and Light Co., 91-ERA-50 (Sec'y Feb. 21, 1992) (respondent also agreed to pay its own costs and legal expenses); Latshaw v. Tennessee Valley Authority, 91-ERA-54 (Sec'y May 28, 1992) (ALJ erred in subjecting dismissal to rulings from his Order on Respondent's otion for Partial Summary Judgment; parties' expressly chose to have the complaints dismissed "without prejudice").

XVIII A 5 a Stipulated dismissal

Voluntary dismissals of ERA complaints are covered by Rule 41 of the Federal Rules of Civil Procedure. A respondent's written response is that it does not object to the complainant's voluntary dismissal and that it will bear its own costs and fees, together with the complainant's notice of voluntary dismissal, may be deemed to constitute a stipulation of dismissal by the parties satisfying the requirements of Rule 41(a)(1)(ii). House v. Tennessee Valley Authority, 92-ERA-9 (Sec'y Jan. 4, 1993).

XVIII A 5 a Stipulated dismissal; effective immediately

A voluntary dismissal by a stipulation signed by all parties who have appeared in the action is effective immediately under Fed. R. Civ. P. 41(a)(1)(ii). First National Bank of Toms River, New Jersey v. Marine City, Inc., 411 F.2d 674, 676 (3d Cir. 1969).

Mulligan v. Vermont Yankee Nuclear Power Corp., 92- ERA-20 and 32 (ALJ May 1, 1992).

XVIII A 5 a Voluntary dismissal

Since neither the ERA, the implementing rules at 29 C.F.R. Part 24, nor the rules governing hearings before ALJs of the Department of Labor at 29 C.F.R. Part 18, contain a provision governing voluntary dismissal, a dismissal without prejudice based on the complainant's request to withdraw his complaint not objected to by the respondent is appropriate under Fed. R. Civ. P. 41(a)(2). Wollesen v. Florida Power Corp., 92- ERA-59 (Sec'y Dec. 15, 1992).

[Editor's note: was this a typo? Did the Secretary mean Rule 41(a)(1)(ii); see Fullmer, 92-ERA-56]

XVIII A 5 a ALJ's failure to forward administrative record

In Mulligan v. Vermont Yankee Nuclear Power Corp., 92-ERA-20 and 32 (Sec'y Apr. 22, 1994), the Secretary never received the administrative record, although it was referenced in the ALJ's recommended order approving the parties' jointly filed motion for dismissal with prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(ii). Because the ALJ's recommendation appeared to be appropriate, rather than delay the final disposition of the case, the Secretary issued an order to show cause why the recommended order should not be accepted as the final decision pursuant to 29 C.F.R. § 24.6. After considering Complainant's response the Secretary adopted the recommended order.

XVIII A 5 a Stipulation of dismissal

A complainant's submission of a Notice of Voluntary Dismissal, together with the respondent's written response that it does not contest the complainant's request, may be deemed to constitute a stipulation of dismissal by the parties, satisfying the requirements of Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure. See Kleiman v. Florida Power and Light Co., 91-ERA-50 (Sec'y Feb. 21, 1992), slip op. at 1-2; Nunn v. Duke Power Co., 84-ERA-27 (Sec'y Sept. 2, 1989), slip op. at 3-4.

Fullmer v. Arizona Public Service Co., 92-ERA-56 (Sec'y Dec. 15, 1992) (ALJ erroneously recommended dismissal under Fed. R. Civ. P. 41(a)(1)(i)).

XVIII A 5 a Where respondent does not object Rule 41(a)(1)(ii) dismissal is appropriate

A Respondent's written response indicating that it does not object to Complainant's voluntary dismissal, together with the complainant's notice of voluntary dismissal, may be deemed sufficient to constitute a stipulation of dismissal by the parties satisfying the requirements of Rule 41(a)(1)(ii) (which is used when dismissing withdrawn ERA complaints).

Blevins v. Tennessee Valley Authority, 90-ERA-4 (Sec'y June 28, 1993).

XVIII A 5 a Voluntary dismissal following filing of motion for summary decision

In Smith v. Burns International Security Service, 93-ERA-15 (ALJ June 29, 1993), adopted (Sec'y Aug. 25, 1993), Respondent filed a motion for summary decision on May 18, 1993. Counsel for Complainant confirmed on June 10, 1993 his client's intention to dismiss the case, that his client understood the implications of dismissal, and that Respondent's counsel agreed to the dismissal and was not intending to file for sanctions or attorney fees.

The ALJ ruled that since a motion for summary judgment had been filed, the complaint could not be voluntarily dismissed under Fed. R. Civ. P. 41(a)(1), and therefore directed Complainant to file a formal request for dismissal under Fed. R. Civil P. 41(a)(2) and directed Respondent's counsel to advise whether the dismissal order should contain any conditions.

Respondent's counsel submitted a joint stipulation and motion for dismissal with prejudice, each party to bear its own costs, under 29 C.F.R. § 18.1(a) and Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure.

The ALJ concluded that Rule 41(a)(1)(ii) was appropriate for dismissal (although he had anticipated a Rule 41(a)(2) motion). He stressed that it appeared that no settlement was involved in the case.

On review the Secretary adopted the ALJ's Recommended Order "as it is in accordance with the prior decisions of the Secretary on voluntary dismissals. [citations omitted]" Smith v. Burns International Security Service, 93-ERA-15 (Sec'y Aug. 25, 1993).

XVIII A 5 a Voluntary dismissal

Where the complainant submitted a written Withdrawal of Complaint, signed by the parties and requesting dismissal with prejudice, the ALJ's recommendation that the case be dismissed with prejudice under Fed. R. Civ. P. 41(a)(1)(ii) was adopted by the Secretary. Caccavale v. Northeast Utilities, 91-ERA-3 (Sec'y Dec. 18, 1990).

XVIII A 5 a Stipulated dismissal

Where the ALJ noted in his Recommended Decision and Order that the parties stipulated to dismissal, that no settlement is involved in the case, and that the complainant, who was appearing pro se, had been advised of the legal consequences of a dismissal, the Secretary adopted the ALJ's recommendation of dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(ii). Buck v. Tennessee Valley Authority,
91-ERA-10 (Sec'y Dec. 23, 1991).

XVIII A 5 a Stipulated dismissal

Where the parties stipulate to dismissal of a complaint with prejudice, Rule 41(a)(1)(ii) is applicable. Dysert v. Florida Power & Light Co., 92-ERA-26 (Sec'y June 28, 1993).

XVIII A 5 b Rule 41(a)(1)(ii) not applicable if motion is based on a settlement

Where the parties agreed to a voluntary dismissal pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure, and the dismissal is based on a settlement, the ALJ should review the terms of the settlement. The case should not be dismissed unless the terms of the settlement are fair, adequate and reasonable.

In addition, where a dismissal is based on a fully executed settlement agreement between the parties, it is not necessary to employ Rule 41(a)(1)(ii) as the applicable statutes and case law provide for the dismissal of a case by the Secretary upon approval of the terms of such an agreement.

McGlynn v. Pulsair Inc., 93-CAA-2 (Sec'y June 28, 1993).

XVIII A 5 b Secretary may review underlying settlement

In Hoffman v. Fuel Economy Contracting, 87-ERA-33 (Sec'y Aug. 4, 1989), the Secretary rejected the respondents' contention that (to paraphrase) under 29 C.F.R. § 18.9(c)(2) and Rule 41 of the Federal Rules of Civil Procedure the parties have a right to enter into an stipulation dismissing the complaint without review by the Department of Labor.

In ordinary lawsuits brought by one private party against another private party, where the rights of other persons will not be affected, "settlement of the dispute is solely in the hands of the parties." United States v. City of Miami, 614 F.2d 1322, 1330 (5th Cir. 1980), aff'd in part and vacated and remanded in part on other grounds on rehearing en banc, 664 F.2d 435 (5th Cir. 1981). Thus, under Fed. R. Civ. P. 41(a)(1)(ii), a stipulation signed by all parties who have appeared in the court action is effective automatically, without judicial involvement. Gardiner v. A.H. Robins Co., Inc., 747 F.2d 1180, 1189 (8th Cir. 1984).

However, by its terms Rule 41 does not apply where "any statute of the United States" establishes other procedures for dismissal of actions pursuant to settlements. The ERA requires the Secretary to issue an order resolving the case "unless the proceeding on the complaint is terminated by the Secretary on the basis of a settlement entered into by the Secretary and the person alleged to have committed such violation. . . ." 42 U.S.C. § 5851(b)(2)(A). In ERA cases, the case cannot be dismissed on the basis of a settlement "unless the Secretary finds that the settlement is fair, adequate and reasonable." Fuchko and Yunker v. Georgia Power Co., 89-ERA-9 and 10 (Sec'y Mar. 23, 1989) (order to submit settlement agreement).

Although it is not necessary for the parties' settlement to be appended to an order approving a settlement and dismissing a case under the ERA, the Secretary has held that "it is error for the ALJ to dismiss a case without reviewing the settlement and making a recommendation of whether the settlement is fair, adequate and reasonable." Id. at 1-2.

DOL does not simply provide a forum for private parties to litigate their private employment discrimination suits. Protected whistleblowing under the ERA may expose not just private harms but health and safety hazards to the public. The Secretary represents the public interest by assuring that settlement adequately protect whistleblowers. Cf. Virginia Electric and Power Co., 19 FERC ¶ 61,333 (Federal Regulatory Energy Commission 1982) ("[B]efore approving a settlement, regardless of whether it is contested or enjoys the unanimous support of the parties, the Commission is obliged to make an independent determination that the settlement is just and reasonable and in the public interest.")

Accord: Bittner v. Fuel Economy Contracting Co., 88-ERA-22 (Sec'y Dec. 13, 1989) (order denying request for reconsideration, dismissal and stay); Thompson v. The Detroit Edison Co., 87-ERA-2 (Sec'y Sept. 29, 1989) (order denying motion to reconsider).

XVIII A 6 Complainant's understanding of meaning of dismissal "with prejudice"

In Wagerle v. The Trustees of the Univ. of Pennsylvania, 91-ERA-48 (Sec'y Mar. 17, 1995) (order denying reconsideration), the Complaint sought reconsideration of the voluntary dismissal of the complaint with prejudice approximately ten months after the Secretary had issued a final order of dismissal. In the Order Denying Reconsideration, the Secretary noted Complainant's argument that his counsel did not adequately explain that in seeking dismissal with prejudice, he would given up his right to sue. The Secretary also noted that the Complainant had sought advice on the meaning of "with prejudice" and was reportedly told by counsel that it "means you can't bring [this complaint] up again." Slip op. at 3, quoting Complainant's motion for reconsideration. Given Complainant's level of education (a Ph.D.), the Secretary concluded that he should have known that withdrawing a complaint with prejudice terminates the complaint at issue and prevents the complainant from raising the same complaint again.

XVIII A 6 Withdrawal of motion

In Kamin v. Hunter Corp., 89-ERA-11 (Sec'y Mar. 12, 1990), the Secretary permitted the complainants to rescind their motion for withdrawal of their joint complaint. In Kamin , the Wage and Hour Division had not conducted an investigation because it had concluded that the complainants were not covered by the ERA inasmuch as they had never been employed by the respondent. Noting that the complainants were proceeding pro se, the Secretary remanded the matter "in the interest of justice" to the Wage and Hour Administrator for an investigation.

[The ALJ had recommended an order finding that the complainants were not entitled to relief under the ERA because the complainants had never responded to the respondent's motion for summary judgment on the ground that the complainants were not, and never had been, employees of the respondent. Kamin v. Hunter Corp., 89-ERA-11 (ALJ Jan. 24, 1989).]

XVIII A 7

No casenote.

XVIII A 8 Withdrawal after ALJ's ruling that complaint could not be amended to include his termination, and suggestion that Complainant could file a more valuable suit based on the termination

In McNiece v. Northeast Nuclear Energy , 95-ERA-18 (Sec'y July 11, 1995), the Complainant, who was acting pro se, represented at the opening of the oral hearing that he engaged in protected activity and that Respondent retaliated by subjecting him to a pattern of adverse personnel action, including termination of employment. The Respondent objected to the raising of the termination issue because it did not occur until after the complaint was filed. The ALJ deemed it inappropriate for the Complainant to amend his complaint at that point, advised the Complainant that he could still file a timely complaint regarding his termination, and suggested to the Complainant that a complaint based on termination was likely to have greater economic benefit, if successful. The Complainant, following the ALJ's suggested, announced that he wished to withdraw. The ALJ recommended to the Secretary that the withdrawal be with prejudice.

The Secretary rejected the ALJ's recommendation that the withdrawal be accepted, and remanded the case for the ALJ to proceed with a hearing. The Secretary stated that if the Complainant has filed another complaint, the ALJ could consider consolidating the complaints in the interest of judicial economy.

[ Editor's note: In his recommended order, the ALJ indicated that he believed that the termination complaint was subject to an initial investigation by the Wage and Hour Division. McNiece v. Northeast Nuclear Energy , 95- ERA-18 (ALJ , 1995).]

[Nuclear & Environmental Digest XVIII A 8]
WITHDRAWAL OF APPEAL; PETITIONER IS NOT REQUIRED BY THE ARB TO SHOW CAUSE FOR WITHDRAWAL

In Johnson v. EG&G Defense Materials, Inc. , ARB No. 06-067, ALJ No. 2005-SDW-2 (ARB May 25, 2006), the ARB stated that it does not require a petitioner to demonstrate cause for withdrawing an appeal.

[Nuclear & Environmental Digest XVIII A 8]
WITHDRAWAL; COMPLAINANT'S DECISION NOT TO PROCEED WITHOUT COUNSEL AND TO PURSUE OTHER FORUMS

In Gattie v. United States Environmental Protection Agency , 1998- CAA-8 (ALJ Sept. 14, 1998), Complainant asked to withdraw his complaint with prejudice, citing as reasons that he could not immediately obtain counsel, and a preference to testify before a congressional subcommittee rather than pursue a remedy before DOL. The ALJ recommended dismissal with prejudice only after informing Complainant that he could proceed without counsel, and informing Complainant that he could accept an extension of time to reply to discovery so that he would have more time to obtain counsel. Complainant, however, still chose to withdraw his complaint.

WITHDRAWAL OF COUNTS GOVERNED BY FED. R. CIV. P. 15(a)
[N/E Digest XVIII A 8]

Voluntary dismissal of a complaint under the ERA is governed by Fed. R. Civ. P. 41. Withdrawal of counts within multiple count complaints, however, is governed by Fed. R. Civ. P. 15(a), which concerns amendments of pleadings. Frady v. Tennessee Valley Authority , 92-ERA-19 and 34 (Sec'y Oct. 23, 1995).

XVIII B 1 Rule 41(a)(2) withdrawal

Where Complainant files a notice of withdrawal and the Respondent does not object thereto, dismissal is appropriate under Fed. R. Civ. P. 41(a)(2). Holmes v. Texas Utilities, 93- ERA-10 (Sec'y June 28, 1993).

[N/E Digest XVIII B 1]
VOLUNTARY DISMISSAL; USE OF FED. R. CIV. P. 41(a)(2)

In Cartwright v. Lockheed Martin Utility Services, Inc. , 97-ERA-41 (ARB Oct. 31, 1997), the ARB accepted the ALJ's recommended order of dismissal pursuant to Fed. R. Civ. P. 41(a)(2). The ALJ had recommended dismissal under Rule 41(a)(2) because in a prehearing telephone conference call Complainant had acknowledged that his complaint did not relate to a potential environmental safety violation, but rather involved a fire safety concern for which Complainant had filed a complaint with OSHA. Following the conference call, the parties submitted a joint motion to dismiss. Cartwright v. Lockheed Martin Utility Services, Inc. , 97-ERA-41 (ALJ Oct 22, 1997). The ALJ found that the dismissal was voluntary, in the best interests of the parties, and that there was no information indicating that a settlement was involved. Id.

To the same effect: Seetharaman v. Massachusetts Water Resources Authority , 97-CAA-17 (ARB Nov. 18, 1997).

XVIII B 1 Voluntary dismissal

In a case arising out of section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 793, and implementing regulations at 41 C.F.R. § 793, where those regulations did not provide for voluntary agreements for dismissal but did provide for reference to the Federal Rules of Civil Procedure in the absence of a specific provision, the office of the Assistant Secretary for Employment Standards consulted Rule 41(a)(1)(ii) of the Federal Rules. She noted that Rule 41(a)(1)(ii) provides for the dismissal of an action "by the plaintiff without order of the court" where a stipulation of dismissal is signed by all the parties, and closed the case based on a such a stipulation affixed to the ALJ's Agreed Order of Dismissal. OFCCP v. Union Camp Corp., 91-OFC-6 (Oct. 22, 1992).

XVIII B 2 Criteria for voluntary withdrawal

In Stokes v. Pacific Gas & Electric Co., 84- ERA-6 (Sec'y July 26, 1988), Complainant requested a withdrawal without prejudice, and Respondents did not oppose the request. Nevertheless, the ALJ was instructed in an order of remand to consider what conditions, if any, would attach to the dismissal under the guidelines set forth in Nolder v. Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985).

According to the Secretary, one of the principal holding of Nolder is that the ALJ's discretion to attach conditions to an order of voluntary dismissal without prejudice should be exercises only to protect a respondent's legitimate interest in the avoidance of legal harm or prejudice. Such harm is not suffered where expenses are incurred by the non-moving party for work which is of use in continuing litigation in another forum. Tactical disadvantage, such as the possibility or reality of defending a second lawsuit on the same issue or issues generally is not sufficient in and of itself to constitute legal harm or prejudice.

In Stokes , Respondents argued before the ALJ that a "substantial" amount of their incurred costs will not be of benefit to them in defending a pending state court action, but did not present any evidence which would distinguish necessary from unnecessary work. Without a basis for quantifying the amount of unnecessary expenses, the Secretary accepted the ALJ's recommendation of no conditions.

The Secretary stated that any harm or prejudice in this case would be represented by the difference between Respondent's expenses incurred only on account of the Department of Labor litigation, and those which Respondents would have incurred had the Complainant filed his action only in the forum where the litigation will proceed. See McLaughlin v. Cheshire, 676 F.2d 855, 857 (D.C. Cir. 1982).

XVIII B 2 Criteria for Rule 41(a)(2) dismissal

In Nolder v. Raymond Kaiser Engineers, Inc., 84- ERA-5 (Sec'y June 28, 1985), the Secretary discussed in detail the analysis to be employed in a Rule 41(a)(2) withdrawal. The following summarizes the Secretary's discussion. Case citations are generally omitted to keep this casenote to a reasonable size.

Rule 41(a)(2) (dismissal by order of the court) was invoked in Nolder because the Respondent had filed the equivalent of an answer by requesting a hearing, making a Rule 41(a)(1) dismissal (dismissal without leave of the court) inappropriate.

The Criteria, Generally

The Secretary indicated that, although the ALJ had misapplied Spencer v. Moore Business Forms, 87 F.R.D. 118 (1980), that case set forth the criteria for determining whether, and under what terms, a motion to withdraw should be granted following the filing of an answer. Three determinations are necessary:

the court must decide whether to allow dismissal at all.
if dismissal is allowed, the court must decide whether it should be with or without prejudice.
if dismissal without prejudice is allowed, the court must decide whether any terms and conditions should be imposed.

Guiding these determinations is the rule that dismissal without prejudice should be granted unless the defendant will suffer some legal harm. Indeed, the very purpose of Rule 41(a)(2) is to allow dismissal without prejudice. The Secretary stated that Spencer makes it clear that whether the defendant will be legally prejudiced must be considered when deciding if the complaint should be dismissed at all, in addition to deciding whether a dismissal should be with or without prejudice. To avoid prejudice, the Rule permits the court to attach conditions to the dismissal. According to the Secretary, legal harm or prejudice is not equivalent with the type of harm that could be rectified by attaching conditions to a withdrawal without prejudice.

What Constitutes Legal Prejudice

The Secretary looked to a Ninth Circuit case for instruction on what constitutes legal harm. Hamilton v. Firestone Tire & Rubber Co., Inc., 679 F.2d 143 (9th Cir. 1982). The Ninth Circuit stated that "[p]lain legal prejudice . . . does not result simply when defendant faces the prospect of a second lawsuit or when plaintiff merely gains some tactical advantage." [citations omitted] It indicated that plain legal prejudice is not shown merely by asserting that trial preparations had begun, or by the mere inconvenience of defending another lawsuit.

The Secretary noted that in Spencer , dismissal without prejudice was disallowed only on those counts on which the court had already granted summary judgment for the defendant. In other cases, legal prejudice has been found where dismissal would have allowed the plaintiffs to proceed in other courts under different laws that would have been more beneficial to the plaintiffs than the laws applicable to the proceedings in which the motions were brought.

The Secretary also found that the effect of dismissing a claim with prejudice must be recognized, and cited caselaw to the effect that dismissal with prejudice is generally only permitted where there is a clear record of delay or contumacious conduct. The Secretary also stated that dismissal with prejudice is a severe sanction because it bars a plaintiff from ever prosecuting another action based on the same cause: i.e., the principle of res judicata applies. The Secretary also noted that a dismissal without prejudice does not toll a statute of limitations, so, where the 30 days from the occurrence of the violation had already passed, a complainant could not file a new ERA complaint since it would be untimely.

According to the Secretary, upon dismissal of the complaint without prejudice, the determination of the Wage and Hour Division is automatically vacated, so a Respondent who appealed is not prejudiced by some outstanding government determination.

ere delay does not constitute legal prejudice. Further, while a monetary loss due to delay can be the subject of a condition for dismissing a claim without prejudice, such a cost is not legal prejudice. Difficulties in gathering evidence from delay is not legal prejudice, both sides being in the same position in that regard.

If a respondent establishes that it would be detrimentally affected by the state laws under which the complainant was seeking proceed, legal prejudice is established.

Criteria for Determining Whether Conditions Should Be Imposed

The ALJ has the discretion to condition dismissal of the complaint without prejudice on complainant's reimbursing the respondent for expenses. The ALJ may decide, however, that the respondent is not entitled to the cost of work that will be useful in a state court proceeding.

The ALJ may also condition the dismissal on the complainant's agreement that all discovery in the case can be used freely in the state court proceeding.

Should the ALJ set conditions, he or she must provide the complainant with the option not to dismiss and to proceed if the complainant finds the conditions too onerous. Only if the complainant accepts the dismissal on the conditions set by the ALJ but does not meet the conditions may the ALJ dismiss the complaint with prejudice.

[Editor's note: On remand, the ALJ wrote a recommended decision and order in which he found that Complainant's counsel's filing in both state court and with the DOL was an appropriate tactical decision given legal uncertainty at the time whether the DOL remedy was exclusive. Respondent sought $58,460.37 in fees as a condition. The ALJ found that with a few exceptions, the legal work done by Respondent's attorneys would be of assistance in the state court action or related to work directly involving the state case initiated by Respondent to block the state case. He noted that Respondent would not be entitled to fees if he won the DOL action, and that the apparent purpose of the sought after fees was to punish Complainant.

In regard to some work done in preparation for depositions cancelled at the last minute by Complainant, the ALJ found that it benefited the defense of the state case, and that the expense were in excess of what was reasonable and necessary (e.g., two attorneys flying first class air fares, and luxurious accommo- dations. Though Respondent might be willing to pay such expenses, this was more than was appropriate.) Thus, he reduced the amount requested considerably to reasonable travel and time expenses.

The Secretary never reviewed the ALJ's recommended decision because the parties settled.]

XVIII B 2 Relevant considerations for Rule 41(a)(2) dismissal
(Voluntary dismissal upon order of the court)

In Young v. CBI Services, Inc., 88-ERA-19 (ALJ Apr. 6, 1993), the ALJ reviewed the respondent's filings and concluded that since they set forth admissions and denials and facts pertinent to the respondent's defense, the respondent had made the functional equivalent of an answer. Accordingly, the ALJ concluded that the motion to dismiss should be considered under Rule 41(a)(2) (voluntary dismissal with leave of the court) of the Federal Rules of Civil Procedure rather than Rule 41(a)(1)(i) (voluntary dismissal without leave of the court).

In considering the motion for voluntary dismissal, the ALJ considered whether terms and conditions should be placed on the dismissal under the analysis detailed in Nolder v. Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985) and Stokes v. Pacific Gas & Electric Co., 84-ERA-6 (Sec'y July 26, 1988). The ALJ concluded that those cases indicated a three part determination (1) whether to allow dismissal, (2) whether the dismissal should be with or without prejudice, and (3) if dismissal without prejudice is allowed, whether any terms or conditions should be imposed. In making these determinations, the ALJ noted that Rule 41(a)(2), as interpreted in Nolder and Stokes, is premised on permitting a withdrawal without prejudice, dismissal with prejudice being a severe sanction. When dismissal without prejudice is granted, the condition of reimbursement of the respondent for costs and fees is normally imposed only for such costs and fees that relate to work that would not be useful in any anticipated litigation.

After analyzing the circumstances, the ALJ recommended dismissal without prejudice.

XVIII B 3 Dismissal with prejudice where complainant does not object to respondent's request for prejudice

Where the complainant asked for dismissal based on her desire to withdraw her complaint, the respondent asked that the dismissal be with prejudice, and the complainant did not object to the respondent's request, the Secretary found that dismissal with prejudice under Fed. R. Civ. P. 41(a)(2), which provides for dismissal by order of the court with such terms and conditions as the court deems proper, was warranted. Hensley v. Nuclear Fuel Services, Inc., 92-ERA-42 (Sec'y Nov. 16, 1992).

XVIII B 3 Dismissal based on Complainant's voluntary dismissal is assumed to be without prejudice

In Young v. Florida Power & Light Co., 93-ERA- 30 (Sec'y July 13, 1995), after some delay, the Complainant filed with the ALJ a Notice of Dismissal on the ground that it would be uneconomical to pursue both the DOL complaint and a federal court case alleging racial discrimination with a pendant claim under a state whistleblower statute. Although the pleading made it clear that the Complainant would prefer a stay while he pursued the court action, the ALJ found that the Complainant had failed to prosecute and recommended dismissal with prejudice because of the Complainant's "dilatory" approach to the DOL proceeding.

The Respondent argued before the Secretary that the dismissal should be with prejudice because the Complainant filed the Notice of Dismissal so late in the process that it had already incurred additional cost and effort in deposing the Complainant listed potential witnesses.

Because the Respondent had already filed an answer when the Complainant filed the Notice of Dismissal, and because there was no stipulation of dismissal the Secretary concluded that the dismissal must be with leave of the court pursuant to Fed. R. Civ. P. 41(a)(2), as made applicable by 29 C.F.R. § 18.1(a). Under Rule 41(a)(2), the court's order is to be "upon such terms and conditions as the court deems proper."

The Secretary, however, declined to impose the sanction of dismissal with prejudice, finding that the delays in the instant case did not rise to the level of failure to prosecute. The Secretary noted that the Federal Rule assumes that a voluntary dismissal is without prejudice unless the order states otherwise, Fed. R. Civ. P. 41(a)(2), and that an involuntary dismissal for failure to prosecute or comply with the rules operates as an adjudication upon the merits (or "with prejudice") unless the order specifies otherwise. Fed. R. Civ. P. 42(b).

XVIII.B.4. Recommendation of dismissal without prejudice where limitations period already expired

In Howe v. Afftrex, Ltd., 94-ERA-8 (ALJ Sept. 20, 1994), the Complainant withdrew his complaint on the ground that new counsel advised him to drop the case and "seek a different case against Afftrex LTD only at a later date." One of the Respondents requested as a condition imposed under Rule 41(a)(2) that the granting of Complainant's motion is subject to a determination that the dismissal precludes any further legal remedy against it under the ERA. The ALJ held that in view of the expiration of the limitations period further complaints under the ERA are barred, and accordingly recommended that the complaint be dismissed without prejudice.

XVIII B 4 Dismissal without prejudice; imposition of conditions

In Brown v. Holmes & Narver, 90-ERA-26 (Sec'y Aug. 31, 1992), the Secretary approved the ALJ's recommended order of dismissal without prejudice. The complainant sought dismissal without prejudice because he had filed a state court proceeding which had been stayed pending final resolution of the ERA case. The ALJ's recommendation imposed several conditions on dismissal without prejudice, namely, the complainant's

reimbursement of respondent's copying costs,
answering of all interrogatories propounded by the respondent in the case, and
agreeing that all evidence gathered by the respondent in the case may be used in any further action by the complainant against the respondent.

The Secretary agreed with the ALJ's analysis that to avoid legal harm or prejudice to a respondent as the result of a dismissal without prejudice, a complainant need pay only for items that will not be useful to respondent in defending an anticipated litigation in another forum.

In his recommended order to dismiss, Brown v. Holmes & Narver, 90-ERA-26 (ALJ Dec. 19, 1990), the ALJ wrote that while a claimant's payment of certain attorney's fees is often a condition to permit voluntary dismissal without prejudice, such a condition is not required, and other conditions may be attached to such a dismissal instead. See Davis v. USX Corp., 819 F.2d 1270, 1276 (4th Cir. 1987); Cants v. Ford Motor Co., 781 F.2d 855 (11th Cir. 1985); 5 Moore's Federal Practice, § 41.06, p. 41-79 (1984); 9 Wright & Miller, Federal Practice & Procedure § 2366, p.181 (1978). One of the factors to consider is the hostility which the litigation has provoked. utual allegations of abuse of the discovery process are not to be overlooked in determining the appropriate conditions, if any, to attach to an order of dismissal without prejudice. Puerto Rico Maritime Shipping Authority v. Leith, 668 F.2d 46, 51 (1st Cir. 1981). A complainant's relative lack of wealth in comparison with a respondent is not an appropriate consideration in determining whether to attach conditions to an order dismissing a complainant without prejudice. See Taragan v. Eli Lilly, 838 F.2d 1337 (D.C. Cir. 1988).

In whistleblower cases, the conditional payment of attorney's fees is a requirement which "should be exercises only to protect a respondent's legitimate interest in the avoidance of legal harm or prejudice." Stokes v. Pacific Gas & Electric Co./Bechtel Power Corp., 84-ERA-6 (Sec'y July 26, 1988), slip op. at 2. See also Nolder v. Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985). Alleged whistleblowers should not be discouraged from reporting health and safety hazards or from filing discrimination complaints. It follows that complainants should not be discouraged from pursuing their claims before the Department of Labor merely because it may appear at some later date that an action before a state court is an alternative. See generally Polizzi v. Gibbs & Hill, Inc., 87-ERA-38 (Sec'y July 18, 1989), slip op. at 2-3; English v. General Electric Co., 110 S.Ct. 2270, 2277 (1990). Although stated by the ALJ not to be dispositive, this policy concern was considered in determining whether to condition the dismissal.

In general, only those attorney's fees which relate to items which would not be useful in an anticipated litigation may be chargeable as a condition to dismissal without prejudice. Davis v. USX Corp., supra; McLaughlin v. Chesire, 676 F.2d 855 (D.C. Cir. 1982); Canley v. Wilson, 754 F.2d 769 (7th Cir. 1985). The ALJ examined the costs incurred by the respondent, and concluded that only some copying expenses would have no relative value in future litigation.

XVIII B 5 Dismissal without prejudice does not toll time limits for filing whistleblower complaint

In Howe v. Affrex, Ltd., 94-ERA-8 (Sec'y Dec. 12, 1994), Complainant filed a written request to withdraw his ERA complaint, indicating that he intended to "seek a diffrent [sic] case against [one of the two Respondents] only at a later date." The Respondent the Complainant intended to sue later did not resist dismissal. The other Respondent raised no objection to voluntary dismissal without prejudice but requested the ALJ to note, as a condition pursuant to Fed. R. Civ. P. 41(a)(2), that a grant of Complainant's motion effectively precludes any future legal remedy against it under the ERA.

The Secretary took the view, however, that the parties' statements amount to a stipulation of dismissal without prejudice as provided in Rule 41(a)(1)(ii). Nonetheless, in a footnote the Secretary observed "that the 'condition' requested by Martin Marietta occurs by operation of law when a case is dismissed without prejudice. A dismissal without prejudice does not toll a statute of limitations -- expiration of the limitations period will bar a complainant from filing another ERA complaint based on the same facts." Slip op. at n.1 (citations omitted).

XVIII C 1 Generally

No casenotes.

[Nuclear and Environmental Digest XVIII C 2]
DISMISSAL FOR FAILURE TO RESPOND TO MOTION FOR SUMMARY DECISION; OLD PART 24 REQUIRED ORDER TO SHOW CAUSE PRIOR TO DISMISSAL; DICTA SUGGESTING THAT ALJ�S SHOULD CONTINUE TO EMPLOY ORDERS TO SHOW CAUSE PRIOR TO DISMISSING A COMPLAINT

In Yarbrough v. U.S. Dept. of the Army, Chemical Agents Munitions Disposal System , ARB No. 05-117, ALJ No. 2004-SDW-3 (ARB Aug. 30, 2007), the ARB held that the ALJ was required under the rule then in effect at 29 C.F.R. § 24.6(e)(4) to issue an order to show cause prior to dismissing a whistleblower complaint for failure to respond to the Respondent's motion for summary decision.� The ALJ had cited a local rule of a federal district court that provided that a failure to respond to a motion shall constitute consent to the granting of the motion.� The ARB, however, found no such provision in the whistleblower regulation. While the matter was on appeal, the Department had issued amendments to Part 24, the effect of which is that 29 C.F.R. Part 18, and specifically Rule 18.6(d)(2)(v) would now apply.� The ARB declined to decide whether that rule would require an order to show cause prior to a dismissal, but observed that ALJs routinely issue such orders or warnings specifying the consequences of failure to comply prior to dismissing cases under the Part 18 rules.

XVIII C 2 Substitution of hearing for order to show cause

In Nolder v. Raymond Kaiser Engineers, Inc., 84- ERA-5 (Sec'y June 28, 1985), an issue was whether 20 C.F.R. § 24.5(e)(4)(ii) was applicable to a voluntary withdrawal of the complaint. The ALJ ruled that the section was applicable (but still required reference to the federal rules), and noted that although the section directs the issuance of an order to show cause, the parties were afforded the same opportunity to brief and argue the merits of Complainant's motion at a hearing as they would have been if the matter were being decided after issuance of an order to show cause. The Secretary agreed that a hearing adequately substituted for the order to show cause if the section was applicable.

The Secretary ultimately did not decide whether the section was applicable because the Federal Rule had to be resorted to in any case.

[Editor's note: The Secretary later did rule that section 24.5(e)(4) was not applicable ( see Digest at XVIII A 1 and Nunn v. Duke Power Co., 84-ERA-7 (Sec'y Sept. 29, 1989).), but this casenote is still relevant insofar as it illustrates that procedures other than an order to show cause may be used in section 24.5(e)(4) dismissals.]

XVIII C 2 Requirement of show cause order

The regulations implementing the ERA at 29 C.F.R. § 24.5(e)(4)(ii) govern dismissals for cause; it takes precedence over the general rules of practice and procedure in 29 C.F.R. Part 18. Section 24(e)(4)(ii) provides that where a dismissal is contemplated, the ALJ "shall issue an order to show cause why the dismissal should not be granted and afford all parties a reasonable time to respond to such order." Thus, where the ALJ had allowed several continuances for the complainant to submit his prehearing statement, each one providing that "[f]ailure to timely comply with this Order without good cause will result in the DISMISSAL of the proceeding or the imposition of other appropriate sanctions," the Secretary found that the warning was not enough because it did not order the complainant to show cause why dismissal was not warranted nor provided him with an opportunity to address the good cause issue. Because dismissal is a drastic sanction, the Secretary concluded that strict compliance with the applicable regulation is required, and remanded the cases for the ALJ to follow the procedure outlined in section 24.5(e)(4). Billings v. Tennessee Valley Authority, 89-ERA-16 and 25 and 90-ERA-2, 8 and 18 (Sec'y Jan. 9, 1992) (the complainant's cases were ultimately dismissed for his "contumacious conduct" -- see the Secretary's July 29, 1992 Final Decision and Order).

XVIII C 3 Dismissal for cause

In the following cases, the ALJ dismissed the case under 29 C.F.R. § 24.5(e)(4). Such dismissals may not have to be reviewed by the Secretary. See * /:

Jensen v. Burns International Security Services, 87-ERA-14 (ALJ Dec. 28, 1987) (after complainant requested continuance, he submitted a letter requesting withdrawal; ALJ issued order to show cause; when no response was received, ALJ dismissed under section 24.5(e)(4)(ii)).

Cummings v. Pinkerton's Inc., 87-ERA-16 (ALJ Apr. 20, 1988) (ALJ issued "Recommended Decision and Order" recommending dismissal based on the complainant's failure to attend the scheduled hearing, and did not specifically cite section 24.5(e)(4)(i); ALJ found that complainant's response to order to show cause (conflicting job interview and breakdown in communication to judge re conflict) failed to establish good cause).

__________

* / Whether such dismissals must be reviewed by the Secretary is not clear. In several cases, the Secretary has stated that an ALJ's decision is only a recommended decision, "except in limited circumstances," citing 29 C.F.R. § 24.5(e)(4). Cowan v. Bechtel Construction, Inc., 87-ERA-29 (Sec'y Aug. 9, 1989); Wensil v. B.F. Shaw Co., 86-ERA-15, 87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29, 1990), aff'd sub nom. on another issue, Adams v. Dole, 927 F.2d 771 (4th Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991).

Section 24.5(e)(4) indicates that an ALJ "may dismiss" a claim upon the failure of the complainant and/or his or representative to attend a hearing without good cause, or upon the failure of the complainant to comply with a lawful order of the ALJ. Arguably, this language gives the ALJ the authority to dismiss a claim for failure to attend or failure to comply with a lawful order, without further review by the Secretary. In Powell v. Tulsa Gamma Ray, Inc., 89-ERA-33 (ALJ July 18, 1989), the OAA returned the case file to this Office with a letter stating that the Secretary did not need to review this dismiss. In Powell the ALJ dismissed based on the complainant's failure to appear at the scheduled hearing, and his failure to respond to the ALJ's subsequent order to show cause.

On the other hand, the Secretary has reviewed a number of cases in which the dismissal was based on failure to attend the hearing or failure to comply with a lawful order. See, e.g., Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Aug. 10, 1988) (ordering remand where ALJ found to have abused his discretion in dismissing a case for the complainant's failure to attend the hearing; in Young , however, the complainant did respond to the order to show cause).

[N/E Digest XVIII C 3]
DEFAULT JUDGMENT FOR FAILURE TO ATTEND HEARING; ALJ RECOMMENDATION MAY BE WAIVED BY SECRETARY

In Coupar v. U.S. Dept. of Labor , No. 95-70400 (9th Cir. Jan. 30, 1997) (available at 1997 U.S. App. LEXIS 1523)(case below 92-TSC-6), a prison inmate requested a hearing on his CAA and TSCA whistleblower complaints against Federal Prison Industries. The ALJ scheduled a hearing, but the Bureau of Prisons refused to allow a hearing to take place at the prison, and instead called the proceeding a deposition. The Bureau also refused to acknowledge the jurisdiction of the ALJ over Complainant's claim, and did not participate in the proceeding. The ALJ recommended a default judgment in Complainant's favor, although he also addressed the merits of the case. The Secretary of Labor rejected the ALJ's recommended decision and order, and concluded that Complainant was not an employee within the meaning of the Acts. The Seventh Circuit affirmed the Secretary's ruling.

Complainant argued before the Seventh Circuit that because the Bureau failed to appear, he was entitled to a default judgment. The court, however, noted that the Secretary had the discretion whether to grant a default judgment, 29 C.F.R. § 18.39(b), and found that The Secretary did not abuse his discretion by rejecting the ALJ's recommended default judgment. The court noted that the Bureau was not "without good cause" in believing that it was not required to attend the ALJ proceedings.

XVIII C 3 ALJ dismissals for cause are "recommended"

Dismissals for cause under 29 C.F.R. § 24.5(e)(4) are "recommended" orders, subject to review by the Secretary. Avery v. B & W Commercial Nuclear Fuel Plant, 91-ERA-8 (Sec'y Oct. 21, 1991), slip op. at 3. Rodolico v. Venturi, Rauch and Scott Brown, 89-CAA- 4 (Sec'y Feb. 21, 1992) (appeal pending in 3d Cir. No. 92-3314).

XVIII C 3 ALJ Dismissal Orders

The Secretary clarified her position stating that dismissal orders by the ALJs under the provisions of section 24.5(e)(4) are not final orders, but are recommended decisions, reviewable by the Secretary under 29 C.F.R. § 24.6. Any perceived precedent to the contrary shall not be followed.

Avery v. B & W Commercial Nuclear Fuel Plant, 91-ERA-8 (Sec'y Oct. 21, 1991).

XVIII C 4 Dismissal for failure to attend hearing or answer order to show cause

In Gasaway v. Baldwin Associates, 81-ERA-8 (ALJ Sept. 28, 1981), Complainant failed to appear at the hearing and failed to answer a subsequent order to show cause. Accordingly, the ALJ dismissed the complaint with prejudice, citing 29 C.F.R. § 24.5(e)(4).

[Editor's note: This case was apparently never forwarded for Secretarial review. This was well before the Secretary clarified in Avery v. B & W Commercial Nuclear Fuel Plant, 91- ERA-8 (Sec'y Oct. 21, 1991), that such orders are recommended and not final.]

[Nuclear & Environmental Whistleblower Digest XVIII C 4]
DISMISSAL FOR CAUSE; FAILURE TO ATTEND HEARING OR RESPOND TO ORDER TO SHOW CAUSE

In Steiner v. The City of Canton , 2001-WPC-1 (ALJ Jan. 7, 2002), a copy of the notice of hearing served on the Complainant by certified mail, return receipt requested, was returned as unclaimed by the U.S. Postal Service after three attempts at delivery. A second copy of the notice was sent by regular and certified mail. The certified mail was again unclaimed, but the regular mail copy was not returned as undeliverable. The Complainant did not show up the hearing. The ALJ issued an order to show cause by regular and certified mail, and again the certified mail was not claimed but the regular mail was not returned as undeliverable. Complainant did not respond to the order to show cause, and the ALJ recommended dismissal of the case with prejudice.

[N/E Digest XVIII C 4]
DISMISSAL FOR FAILURE TO ATTEND HEARING

In Durakovic v. Dept. of Veterans Affairs , 97-ERA-39 (ALJ Aug. 28, 1997), the ALJ recommended dismissal of the complaint with prejudice based on the failure of Complainant or a representative to appear at the scheduled hearing, and Complainant's lack of response to Respondent's subsequent motion to dismiss for failure to prosecute. The ARB issued an order to show cause, and dismissed the complaint when Complainant declined to respond. Durakovic v. Dept. of Veterans Affairs , 97-ERA-39 (ARB Sept. 16, 1997).

XVIII C 4 Failure to attend hearing

In Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Aug. 10, 1988) (order of remand), the Secretary rejected the ALJ's recommendation of dismissal based on the failure to show good cause for the complainant and the complainant's attorney to appear at the scheduled hearing. In response to the ALJ's order to show cause, counsel stated that there had been a misunderstanding between the complainant and his counsel about the date of the hearing. Counsel had not been served with a notice of the hearing, and was told the wrong date by the complainant. He requested a postponement more than a week in advance of the erroneous date. The ALJ found that the complainant and his attorney were guilty of "inexcusable neglect." The Secretary, however, found that a careful exercise of discretion laid in favor of not denying the complainant his day in court for a simple mistake.

XVIII C 4 Dismissal; failure to appear at hearing; failure to comply with order

Dismissal with prejudice is a severe sanction which must be tempered by a careful exercise of judicial discretion and should not be ordered in the absence of willful and contumacious conduct. Dismissal with prejudice is proper under 29 C.F.R. § 24.5 (e)(4), however, where as a dilatory tactic a complainant deliberately fails to appear at his evidentiary hearing and to comply with Respondent's discovery request, and the ALJ's pre-hearing order. The appearance of Complainant's attorney does not render section 24.5 (e)(4) inapplicable since that section provides that the ALJ may dismiss a claim upon the failure of the complainant or the representative to appear. Where the case arises within the jurisdiction of the Seventh Circuit, the ALJ is not required to "fire a warning shot," Patterson v. Coca-Cola Bottling Co., 852 F.2d 280,284 (7th Cir. 1988), nor to impose any lesser sanctions as a prerequisite to dismissal, Daniels v. Brenner, 887 F.2d 783, 788-89 (7th Cir. 1989).

Ridings v. Commonwealth Edison, 88-ERA-27 (Sec'y Sept. 20, 1991).

[NOTE: ALJ issued show cause order as required by 29 C.F.R. § 24.5(e)(4)(ii)]

XVIII C 4 Failure to appear at hearing

When a Complainant fails to appear at a hearing, the appropriate regulatory authority for dismissal for failure to appear is found at 29 C.F.R. § 24.5(e)(4)(i). Tracy v. Consolidated Edison Co. of New York, Inc., 91-TSC-2 (Sec'y Jan. 24, 1994).

XVIII C 4 Failure to appear at hearing

In Borchert v. Tennessee Valley Authority, 90-ERA- 57 (Sec'y Mar. 9, 1992), the Secretary agreed with the ALJ's recommendation to dismiss the complaint pursuant to 29 C.F.R. § 24.5(e)(4)(i)(A) based on the complainant's failure to appear at the hearing. The complainant moved for a continuance outside of the time permitted for such a motion by the ALJ's order scheduling the hearing. The ALJ denied the motion because the complainant failed to indicate any reasons for making the request outside the permitted time. When the complainant failed to attend the hearing, the ALJ issued an order to show cause pursuant to 29 C.F.R. § 24.5(3)(4)(ii), and when the complainant failed to respond, he issued a Recommended Order of Dismissal.

XVIII C 4 Dismissal for cause

An ERA case may be dismissed for cause under 29 C.F.R. § 24.5(e)(4)(i)(A), where the Complainant fails to attend the hearing and fails to respond to the ALJ's order to show cause why the complainant should not be dismissed for failure to attend the hearing without good cause. Avery v. B & W Commerical Nuclear Fuel Plant, 91-ERA-8 (Sec'y Oct. 21, 1991).

XVIII C 4 Dismissal for failure to attend hearing

Where the Complainant did not appear at the hearing and did not respond to the ALJ's order to show cause why the complaint should not be dismissed for abandonment and failure to appear at the hearing, dismissal was appropriate pursuant to 29 C.F.R. § 24.5(e)(4)(i) and (ii). The Secretary noted that the ALJ's order was not entitled "Recommended Decision and Order," and that under the WPC's implementing regulations, 29 C.F.R. Part 24 (1992), except in limited circumstances, and ALJ's decision is a recommended decision, and final orders must be issued by the Secretary. 29 C.F.R. § 24.6. Mitchell v. United States Army, 93-WPC-5 (Sec'y Oct. 1, 1993).

[Editor's note: I'm not sure what "limited circumstances" are appropriate for an ALJ to issue the final order. This would seem to fall into that category if any cases do. The Secretary also noted that the ALJ did not cite the applicable regulations for the dismissal.]

XVIII C 4 Failure to appear at hearing

XVIII C 4 Dismissal for failure to attend hearing

XVIII C 4 Lack of cooperation; failure to attend hearing

In Coupar v. Federal Prison Industries/Unicor, 92- TSC-6 and 8 (ALJ June 11, 1992), Respondent maintained that the ALJ had no jurisdiction to consider a federal prison inmates' whistleblower complaint, induced the ALJ to conducting the hearing at the prison rather than DOL's courtroom, but refused to permit him to conduct an "adversarial hearing" at the prison, although it allowed him to conduct a "deposition" at which none the subpoenaed employees for Respondent appeared and at which counsel did not enter an appearance (although counsel was present at the prison).

The ALJ took the testimony of Complainant and a fellow inmate. In his recommended decision, the ALJ recommended finding Respondent in default under 29 C.F.R. §§ 18.5(b) and 18.39. The ALJ proceeded, however, to decide the case on the merits based on the record presented.

XVIII C 4 Dismissal for failure to appear at hearing

The Secretary dismissed the Complainant's case where the Secretary has issued an Order to Show Cause why the complaint should not be dismissed for failure to appear at the scheduled hearing and the Complainant has not responded within the allotted time. Grizzard v. Tennessee Valley Authority, 91- ERA-41 (Sec'y May 4, 1994).

XVIII C 5 Abandonment

Where, acting through counsel, the complainant filed an appeal of the denial of his ERA whistleblower claim by the District Director, in a conference call several weeks later the complainant's counsel stated that he had not spoken with the complainant since filing the appeal and the ALJ ordered the counsel to attempt to contact the complainant and report the result, the attempt was not successful, the ALJ then issued an order to show cause why the claim should not be dismissed as having been abandoned, the complainant did not respond to the order nor to the ALJ's subsequent recommended order of dismissal, the Secretary agreed with the ALJ that the case must be dismissed. 29 C.F.R. §§ 24.5(e)(4)(i)(B) and (ii), 18.39(b); see B.R. McCrumb v. Westinghouse Radiological Services, Inc., 92-ERA-42 (Sec'y Apr. 9, 1992), slip op. at 2.

Johnson v. Commonwealth Edison Co., 92-ERA-25 (Sec'y Sept. 23, 1992).

XVIII C 5 DISMISSAL; ABANDONMENT

In Moody v. Tennessee Valley Authority, 93-ERA-14 (Sec'y June 28, 1995), the Respondent moved to dismiss after the Complainant failed to appear for a deposition and based on Complainant's statements that he intended to dismiss the complaint. Complainant responded to the ALJ's order to show cause why the complaint should not be dismissed by asking for more time to retain counsel. The ALJ allowed 30 additional days for the Complainant to retain counsel, but warned that if Complainant failed to notify the ALJ that he had retained counsel and desired to pursue the claim, the complaint would be dismissed. The Complainant did not provide the required notification, and the Secretary accepted the ALJ's recommendation of dismissal for abandonment pursuant to 18 C.F.R. § 18.39(b).

XVIII C 5 Abandonment

The counsel for the complainant in Lint v. Illinois Power Co., 87-ERA-18 (ALJ Apr. 21, 1987), filed a motion to dismiss, which stated:

Now comes the Complainant, Mitchell Lint, by his attorneys, Arnold, Gesell & Schwulst, and moves that the Administrative Law Judge enter an order herein dismissing the complaint filed by the Complainant, Mitchell Lint, on grounds that he does not believe that he will receive a full, fair, deliberate and unbiased trial herein.

ALJ slip op. at 1.

The Secretary noted that the ALJ did not refer to any regulatory authority for the dismissal. She concluded that "the circumstances of this case fall within the provisions of 29 C.F.R. § 18.39(b) (1988), Dismissal-Abandonment by Party, and that dismissal of this case is appropriate." Lint v. Illinois Power Co., 87-ERA-18 (Sec'y Mar. 16, 1989).

XVIII C 5 Dismissal for abandonment

In Billings v. Bechtel Group, 89-ERA-45 (ALJ July 20, 1993), the case was continued on September 28, 1989 at Complainant's request based on ill health. On March 29, 1993, the ALJ issued an order to show cause why the case should not be dismissed for lack of jurisdiction (Wage & Hour had determined that Respondent was not subject to the ERA), or abandonment. Having received no response from Complainant to the order to show cause, the ALJ recommended dismissal based on abandonment.

XVIII C 5 Abandonment

In Moody v. Tennessee Valley Authority, 93-WPC-14 (ALJ Nov. 23, 1993), the ALJ recommended dismissal based on abandonment where:

the hearing was continued because the parties averred that they were in the process of settling;
no proposed settlement was submitted, and the ALJ ordered a status report;
Complainant did not respond and Respondent filed a motion to dismiss on the basis of Complainant's failure to appear for a scheduled deposition, Complainant was the person who requested the cancellation of the hearing, and Complainant had repeatedly stated that he intended to dismiss the proceeding;
the ALJ issued a Rule To Show Cause; Complainant asserted that he needed more time to retain counsel; the ALJ held that Complainant had over a year since he filed his complaint with DOL to retain counsel and ordered Complainant to file a statement within 30 days that he had retained counsel and desired to pursue the complaint, or suffer dismissal.
Complainant did not answer the order.

XVIII C 5 Dismissal; abandonment; failure to comply with ALJ's lawful orders

Where the complainant did not respond to the ALJ's order directing the complainant to provide his new mailing address and phone number and notifying the complainant that his failure to do so would imply abandonment, did not file any response to the ALJ's subsequent order to show cause, or his recommended order of dismissal, the Secretary agreed with the ALJ that the case must be dismissed. 29 C.F.R. § 24.5(e)(4)(i)(B) and (ii), 18.39(b); see 29 C.F.R. § 18.1(a); Avery v. B & W Commercial Nuclear Fuel Plant, 91-ERA-8 (Sec'y Oct. 21, 1991), slip op. at 3-4. The complainant had requested a postponement of the hearing on the basis that he was relocating his residence, and although the complainant indicated that he would contact the ALJ the next month, he made no further communication. McCrumb v. Westinghouse Radiological Services, Inc., 89-ERA-42 (Sec'y Apr. 9, 1992).

XVIII. C. 6. Dismissal for failure to comply with the ALJ's lawful order

In Billings v. Reich, No. 92-3927 (6th Cir. June 1, 1994) (unpublished) (available at 1994 U.S. App. LEXIS 13250), the Sixth Circuit upheld the dismissal of the complaint based on the Complainant's failure to comply with the ALJ's orders directing the filing of prehearing submissions, and upon DOL's provision of adequate predismissal notice.

The Secretary had remanded to the ALJ for issuance of an order to show cause prior to dismissal, which the ALJ did, and upon finding inadequate reasons for the failure to comply with the orders for prehearing submissions, recommended dismissal, which the Secretary adopted.

[Nuclear & Environmental Whistleblower Digest XVIII C 6]
DISMISSAL FOR CAUSE; FAILURE TO COMPLY WITH LAWFUL ORDERS

In Reid v. Niagara Mohawk Power Corp. , 2002-ERA-3 (ALJ Dec. 26, 2002), the ALJ recommended dismissal of the complaint where Complainant completely disregarded three separate prehearing orders issued by the ALJ, and failed to attend his scheduled deposition without good cause.

[Nuclear & Environmental Whistleblower Digest XVIII C 6]
DISMISSAL FOR CAUSE; FAILURE TO COMPLY WITH LAWFUL ORDERS

In Puckett v. Tennessee Valley Authority , 2002-ERA-15 (ALJ Nov. 21, 2002), the ALJ recommended dismissal of the complaint where Complainant's attorney repeatedly refused to comply with the ALJ's orders and displayed contumacious conduct. The attorney, for example, repeatedly refused to comply with the ALJ's direction not to use faxes for the filing of documents; attempted to take control of the scheduling of the case by repeated last minute notifications of alleged conflicts and then refused to answer the court's questions about those alleged conflicts; filed scandalous, disparaging and impertinent remarks about the ALJ of the type about which the ARB warned the attorney in an order denying an interlocutory appeal; rather than complying with the ALJ's order to submit discovery to Respondent, sent the discovery response to the District Chief ALJ for "safekeeping" to be sent to Respondent only upon its agreement to a simultaneous exchange; and rather than heeding the ARB's warning about unprofessional, offensive excoriation, heightened his verbal assault on the ALJ to include suggestions that the ALJ suffered from diagnosable mental illness. The ALJ found that the attorney's failure to comply with the Scheduling Order "was a deliberate, unjustified delaying tactic and a deliberate expression of contempt for the Court." The ALJ observed that the abuse came from the attorney and not the Complainant himself, but noted that Complainant was served with all documents and thus was aware of his attorney's behavior. Noting the attorney's history of disregard and/or disobedience of orders and warnings from the ALJ in the instant case and before other ALJ's, the ARB and federal courts in other cases the ALJ concluded that sanctions less severe than dismissal had been ineffective in the past.

[N/E Digest XVIII C 6]
DISMISSAL; FAILURE TO RESPOND TO ALJ'S ORDER TO SHOW CAUSE

In Jackson v. Northeast Utilities Co. , 98-ERA-6 (ARB June 22, 1998), the ALJ had issued an order to show cause because the record did not reveal that Complainant had ever filed a request for a hearing following issuance of OSHA's determination letter. Complainant did not respond, and the ALJ recommended dismissal both because Complainant did not file a request for a hearing and because Complainant did not respond to the order to show cause. The ARB affirmed the ALJ on the ground of Complainant's failure to respond to the order to show cause.

To the same effect: Staskelunas v. Northeast Utilities Co. , 98-ERA-8 (ARB May 4, 1998)(Complainant's counsel only submitted a status inquiry letter after the time period expired for responding to the order to show cause).

[N/E Digest XVIII C 6]
DISMISSAL FOR CAUSE; COMPLAINANT'S CONDUCT

In Tracanna v. Arctic Slope Inspection Service , 97-WPC-1 (ARB Nov. 6, 1997), the ARB rejected the ALJ's Recommended Order of Dismissal, in which the ALJ had found that Complainant had demonstrated a pattern of refusing to cooperate in the discovery process.

In Tracanna , Complainant, who was proceeding pro se , did not timely respond to Respondent's initial discovery and admissions requests, or seek additional time to respond. Upon Respondent's motion, the ALJ issued an order directing Complainant to answer the discovery requests and to show cause why the requests for admissions should not be deemed admitted. Complainant did not respond to the ALJ's order, although he was actively pursuing other aspects of his case, such as filing a FOIA request with DOL, submitting his own discovery requests, and participating in settlement negotiations. The ALJ issued an order finding that Respondent's requests for admissions were deemed admitted. Respondent then moved for additional sanctions for Complainant's failure to respond to the discovery requests. The ALJ granted the motion the following day, ordering that the evidence requested in Respondent's interrogatories was deemed adverse to Complainant, and barring Complainant from relying on testimony of any witness not identified in the discovery responses, including expert witnesses, and from introducing documents or other evidence he failed to produce. The ALJ also ordered that Complainant could not object to the introduction and use of secondary evidence to show what the withheld admissions, testimony, documents or other evidence may have shown.

Complainant thereafter wrote to the ALJ explaining that he had difficulty finding an attorney, and had not received any advice when he asked the ALJ's office for help. He stated that the sanctions appeared to eliminate his case, and asked whether an appeal was possible. The ALJ treated the letter as a motion for reconsideration of the sanctions order, and denied it.

Next, since Complainant was unavailable on the date noticed for his deposition, he had arranged a later date with Respondent. The day of the rescheduled deposition, Complainant called Respondent's counsel to state that he would not make himself available for the deposition. Respondent moved to dismiss, and the ALJ issued an order to show cause. Complainant submitted a response apologizing for not responding quickly enough to orders and discovery requests and explaining that he viewed the order for sanctions as superseding the merits of his case. The ALJ then issued his recommended order of dismissal based on the factors stated in Malpass v. General Electric Co. , 85-ERA-39 (Sec'y Mar. 1, 1994), for determining whether dismissal is warranted based on misconduct:

(1) Complainant's degree of personal responsibility;

(2) the amount of prejudice to the Respondent;

(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.

The ARB agreed with the use of the Malpass factors, but found that dismissal was inappropriate. The ARB cited the following factors:

· Complainant had not exhibited a drawn out history of deliberately proceeding in a dilatory fashion (the ARB noting that Complainant timely responded to several of the ALJ's show cause orders, albeit not the order regarding sanctions for failure to answer discovery);

· Complainant was proceeding pro se , and although he did not request additional time to respond to discovery, such requests are routinely granted;

· Respondent had not established a good faith attempt to resolve discovery disputes informally before resorting to the intervention of the ALJ;

· Complainant did not simply fail to appear for his scheduled deposition; rather he called Respondent's counsel and explained that in view of the ALJ's sanctions order he no longer had a case and that the deposition would be a waste of everyone's time;

· the ALJ's sanctions order did effectively prevent Complainant from presenting any case whatsoever;

· Complainant's difficulty finding an attorney;

· Complainant's active participation and seeking of information needed to prove his case ( i.e. , his FOIA request, submission of discovery requests, and participation in settlement negotiations);

· lack of prejudice to Respondent in permitting the case to proceed;

· that the ALJ's conclusion that sanctions less severe than dismissal had been ineffective was faulty insofar as the ALJ's earlier sanctions were so effective that they had rendered Complainant's further participation useless;

· that the ARB was confident that Complainant "now understands the severity of potential consequences for not complying with discovery requests and orders";

· the ALJ could consider Complainant's past actions in regard to any renewed motion to dismiss in response to future missed deadlines;

· that "[o]nly six weeks elapsed between the time [Complainant] first missed a discovery deadline . . . to the time that his case was eviscerated ..." and that during that time he had actively pursued other aspects of his case.

The ARB vacated the ALJ's order deeming that the request for admissions to be admitted and the order imposing sanctions for failure to comply with discovery requests.

[N/E Digest XVIII C 6]
DISMISSAL FOR FAILURE TO COMPLY WITH ALJ'S PREHEARING ORDERS

In Chalk v. Jerry l. Pettis Memorial Veterans Affairs Medical Center , 97-ERA-4 (ARB Sept. 9, 1997), the ARB dismissed the complaint after issuing an order to show cause and receiving no response from Complainant. The ALJ had issued a Recommended Order of Dismissal based on Complainant's repeated failure to comply with the ALJ's orders requiring him to file a prehearing statement, or to response to the ALJ's order to show cause why the complaint should not be dismissed. Chalk v. Jerry l. Pettis Memorial Veterans Affairs edical Center , 97-ERA-4 (ALJ July 8, 1997).

To the same effect, see: Schooley v. Alyeska Pipeline Service Co. , 96-TSC-4 (ALJ June 3, 1996), adopted by ARB following failure of Complainant to respond to its order to show cause in regard 96-TSC-4 and a consolidated case , Schooley v. Alyeska Pipeline Service Co. , 96-TSC-4 and 97-TSC-5 (ARB Sept. 8, 1997) (ALJ had issued order to show cause based on apparent coverage of complaint by earlier settlement; Complainant did not respond, and ALJ recommended dismissal for abandonment).

DISMISSAL FOR FAILURE TO RESPOND TO LAWFUL ORDER OF ALJ
[N/E Digest XVIII C 6]

In Billings v. Tennessee Valley Authority , 91-ERA-12 (ARB June 26, 1996), the ALJ issued an order to show cause why the case should not be dismissed due to the failure of Complainant to comply with an earlier prehearing order. Complainant's response avoided the issue, and did not contain a denial that he failed to comply with the ALJ's prehearing order. The Board held that the ALJ's dismissal of the complaint with prejudice was proper pursuant to 29 C.F.R. § 24.5(e)(4)(I)(B).

XVIII C 6 Dismissal; failure to appear at hearing; failure to comply with order

Where the case arises within the jurisdiction of the Seventh Circuit, the ALJ is not required to "fire a warning shot," Patterson v. Coca-Cola Bottling Co., 852 F.2d 280,284 (7th Cir. 1988), nor to impose any lesser sanctions as a prerequisite to dismissal, Daniels v. Brenner, 887 F.2d 783, 788-89 (7th Cir. 1989).

Ridings v. Commonwealth Edison, 88-ERA-27 (Sec'y Sept. 20, 1991).
[NOTE; ALJ issued show cause order as required by 29 C.F.R. § 24.5(e)(4)(ii)]

XVIII C 6 Failure to comply with lawful orders

An ALJ may, on his own motion, dismiss an ERA complaint upon the failure of the complainant to comply with a lawful order. 29 C.F.R. § 24.5(e)(4)(i)(B). In this regard, an administrative agency's power to control its docket is similar to that of a court. Dismissal with prejudice is warranted only where there is a clear record of delay or contumacious conduct and a lesser sanction would not better serve the interests of justice. Consolidation Coal Co. v. Gooding, 703 F.2d 230, 232-33 (6th Cir. 1983).

In the instant case, the complainant had filed five complaints. The ALJ, who had not yet made a decision on whether to consolidate the cases, had required all prehearing submissions to be submitted at the same time, but had provided ample time for filing (94 days in total). The complainant, citing illness, had refused to file anything unless the ALJ acceded to his demands for separate filing dates.

The Secretary held that the complainant's refusal to take any steps to comply with the ALJ's orders shows an unmistakable pattern of contumacious conduct and is sufficient grounds for dismissing the complaints. Consolidation Coal, 703 F.2d at 233; Avery v. B & W Commercial Nuclear Fuel Plant, 91-ERA-8 (Sec'y Oct. 21, 1991) (dismissal warranted upon failure to attend hearing and failure to respond to show cause order). See Ahlberg v. Department of Health and Human Services, 804 F.2d 1242 (Fed. Cir. 1986) (failure to make any submission after twice being told to do so is a failure to prosecute the appeal).

Billings v. Tennessee Valley Authority, 89-ERA-16 and 25, and 90-ERA-2, 8 and 18 (Sec'y July 29, 1992).

XVIII C 6 Failure to file written withdrawal

In Spangenberger v. Briggs Associates, Inc., 92- TSC-1 (ALJ Oct. 10, 1992), the hearing was postponed twice, and the ALJ thereafter permitted the parties to attempt to resolve the matter voluntarily. Subsequently, the parties informed the ALJ that the complaint would be withdrawn with prejudice by Complainant. After repeated requests and an order to show cause, the parties did not file a letter of withdrawal. Finally, the ALJ dismissed the request for a hearing and reinstated the Secretary's Preliminary Findings pursuant to 29 C.F.R. § 24.5(e)(4)(B)(ii).

XVIII C 6 Oral withdrawal

In Spangenberger v. Briggs Associates, Inc., 92- TSC-1 (ALJ Oct. 10, 1992), the parties advised the ALJ that the complaint would be withdrawn with prejudice by the Complainant. After repeatedly requesting a written withdrawal, the ALJ issued an Order to Show Cause, warning that failure to file the document would result in dismissal with prejudice. The parties did not respond, and the ALJ issued a final order of dismissal.

[Editor's note: The ALJ reinstated the Secretary's Preliminary Findings as the Final Order in the case, citing several STAA cases. Those STAA cases, however, were based on different regulatory procedures and it is probable that the ALJ's order of dismissal should have been recommended rather than final.]

XVIII. C. 6. Dismissal for failure to comply with the ALJ's lawful order

XVIII.C.6. Dismissal of complaint as sanction

In Tennessee Valley Authority v. Reich, 1994 U.S. App. LEXIS 13255 (6th Cir. 1994), the Sixth Circuit found that notwithstanding the APA's requirement that the Secretary decide all pending motions before dismissing the complainants, the Secretary's dismissal of the complainant's claims in accordance with 29 C.F.R. § 24.5(e)(4) was a proper sanction for his failure to comply with the ALJ's orders. The court also upheld the Secretary's holding that once he had dismissed the claims, the respondent's motions for summary judgment became moot. The court also noted that the respondent lacked standing to claim that the Secretary had not followed the APA, 5 U.S.C. § 557(c), because the respondent did not suffer any injury from the Secretary's actions.

XVIII C 6 Failure to respond to order to show cause

In Laretta v. Niagara Mohawk Power Co., 86-ERA-3 (Sec'y Apr. 21, 1986), the ALJ properly dismissed the complaint under 29 C.F.R. § 24.5(e)(4)(i)(B) where the Complainant failed to respond to the ALJ's order to show cause. The ALJ had ordered the Complainant to show cause why the complaint should not be dismissed for failure to state a cognizable complaint under 29 C.F.R. Part 24. Laretta v. Niagara Mohawk Power Co., 86-ERA-3 (ALJ Nov. 15, 1985) (order to show cause). The Recommended Order -- Dismissing Complaint, however, was based on the failure to respond to the order rather than the failure to state a cognizable complaint. Laretta v. Niagara Mohawk Power Co., 86-ERA-3 (ALJ Mar. 12, 1986).

XVIII C 6 Failure to comply with lawful orders

Malpass v. General Electric Co., 85-ERA-38, 39 (Sec'y Mar. 1, 1994)

After the Wage & Hour Division of the Department of Labor's Employment Standards Administration found no violation pursuant to the complaint, the complainant filed a request for a hearing. During pre-trial procedures, the complainant, at the advice of counsel, refused to comply with various ALJ pre-hearing and discovery orders, failed to respond to Respondent's discovery requests, and failed to appear for the scheduled hearing. The complainant's counsel asserted that he could not proceed with any of the requests or orders until he had received a complete copy of the Wage and Hour Division's final investigation report, even after his FOIA request for the report was denied. Subsequently, the ALJ recommended dismissing the complaint for failure to cooperate.

The Secretary affirmed the ALJ's recommended decision and reviewed the ALJ's authority to control the course of the hearing, and to sanction the parties for failure to comply with the ALJ's orders. The Secretary held that the ALJ was soundly within his discretion in denying a request for a continuance upon counsel's assertion of prior commitments. The ALJ may grant a continuance and the nature of the prior commitment demonstrates "good cause," and the decision may not be overturned unless there is a clear showing of abuse of discretion (where the exercise of discretion has been demonstrated to clearly prejudice the appealing party. In Professionals Air Traffic Controllers Organization v. Federal Labor Relation Authority (FLRA), 685 F.2d 547 (D.C. Cir. 1982), the D.C. Circuit Court enumerated several factors to be considered by an ALJ in exercising this discretion:

(1) "the length of the delay requested," (2) "the potential adverse effects of that delay," (3) "the possible prejudice to the moving party if denied the delay," and (4) "the importance of the testimony that may be adduced if the delay is granted." Id .at 588.

The Secretary also held that the dismissal of the complaint was justified on policy grounds based on the "dilatory and contumacious" conduct of the Complainant's counsel, but denied the Respondent's motion for the award of attorney's fees and costs.
[Editor's note: The Secretary discusses in dicta his doubts about the Secretary's authority directly to order sanction beyond an order controlling the hearing and proceedings before the Secretary. For example, the opinion mentions the lack of power for the Secretary to issue subpoenas or to punish for contempt and failure to comply with a subpoena. See slip. op. at 20-21.]

XVIII C 6 Failure to comply with ALJ's lawful order

In Billings v. Reich, No. 92-3927, 1994 U.S. App. LEXIS 13250 (6th Cir. June 1, 1994) (unpublished), the Secretary had dismissed Complainant's complaints based on the recommendation of the ALJ to dismiss under 29 C.F.R. § 24.5(e)(4)(i): failure to comply with a lawful order of the ALJ. Complainant argued that the agency's dismissal was erroneous because no hearing had been conducted.

The court found no abuse of discretion by the Secretary under the circumstances of the case (failure to comply with the ALJ's order that the parties file prehearing submissions despite a two-month extension; on Secretary's direction, ALJ had given predismissal notice and Complainant failed to show cause for his refusal to comply with the ALJ's orders).

[Editor's note: DOL case numbers: 89-ERA-16, 25; 90-ERA-2, 8, 18]

XVIII C 6 Default judgment; failure to respond completely to subpoena

In Hasan v. System Energy Resources, Inc. , 89-ERA- 36 (ALJ July 27, 1989), Complainant served a subpoena duces tecum seeking from Respondent all documents tendered by Respondent to the Wage and Hour Division during the course of the preliminary investigation. Respondent's response did not match the information provided to Complainant in its FOIA request to DOL for the same documents. Complainant sought a default judgment.

The ALJ denied the motion for default judgment, noting that Complainant had insisted on no continuances, and that Respondent had substantially complied with Complainant's document demands. At the hearing, Respondent was precluded from entering certain documents until it completed its subpoena return -- a sanction the ALJ found to be adequate under the circumstances.

XVIII C 6 Failure to comply with ALJ's lawful order

The Secretary of Labor does not err in dismissing a complaint in accordance with 29 C.F.R. § 24.5(e)(4) as a sanction for the complainant's refusal to comply with lawful orders of the ALJ without first ruling on the respondent's motion for summary judgment. Respondent contended that section 557(c) of the Administrative Procedure Act, 5 U.S.C. § 557(c), requires the Secretary to decide all pending motions before imposing the sanction of dismissal. The court that section 557(c) did not support that contention. Tennessee Valley Authority v. Reich, No. 92-3977, 1994 U.S. App. LEXIS 13255 (6th Cir. June 1, 1994) (unpublished) (court also held that upon issuance of the dismissal of the complaints, the motion for summary judgment became moot).

[Editor's note: DOL case numbers: 89-ERA-16, 25; 90-ERA-2, 8, 18]

XVIII C 7 Nature of complaint under OALJ Rules of Practice and procedure

The complaint filed by the complainant in an ERA whistleblower action 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 ETA simply initiates an investigation. 29 C.F.R. § 24.4. A hearing is initiated, after a determination by the Wage-Hour Administrator, by filing a request for a hearing by telegram with the Chief Administrative Law Judge. 29 C.F.R. § 24.4(d)(2). Thus the complainant's motion for default judgment under 29 C.F.R. § 18.5(a) (requiring an answer to a complaint) based on the employer not filing an "answer" to her complaint to Wage-Hour was properly denied by the ALJ. The Secretary also noted that she does not interpret 29 C.F.R. Part 24 as requiring an answer to a telegram requesting a hearing. English v. General Electric Co., 85-ERA-2 (Sec'y Feb. 13, 1992).

[Nuclear & Environmental Digest XVIII C 7]
DEFAULT JUDGMENT; FAILURE TO PROVIDE HIGHLY PROBATIVE EVIDENCE DURING DISCOVERY

See casenote of Beliveau v. Naval Underseas Warfare Center , 1997-SDW-1 and 4 (ALJ June 29, 2000), supra , under Nuclear & Environmental Digest VII A 3.

XVIII C 7 Default on issue

Where the ALJ issued a Order to Show Cause which clearly placed the burden on the Complainant to demonstrate why his complaint should not be dismissed for untimeliness, the lack of a response by the Respondent was found by the Secretary not to be a default on the issue under the circumstances. Garcia v. Ebasco Services, Inc., 87-ERA-26 (Sec'y July 11, 1989).

[Nuclear and Environmental Whistleblower Digest XVIII C 8]
TIMELINESS OF APPELLATE BRIEF; DISMISSAL OF APPEAL WHERE COMPLAINANT FAILED TO DEMONSTRATE DUE DILIGENCE

In Castro v. Southern California Edison. , ARB No. 13-072, ALJ No. 2012-ERA-6 (ARB Sept. 12, 2013), the ARB dismissed the Complainant's appeal for failure to file a timely appellate brief where the Complainant failed to demonstrate due diligence in regard to the filing of the brief. The ARB stated that even if it adopted the lesser sanction of construing the Complainant's petition for review as a brief, dismissal would still be required because the Complainant only argued in the petition that the ALJ wrongly decided his complaint and did identify any specific errors of fact or law to support that assertion.

[Nuclear and Environmental Whistleblower Digest XVIII C 8]
FAILURE TO PROSECUTE APPEAL BEFORE THE ARB; DENIAL OF PETITION FOR REVIEW

In Newport v. U.S. Dep't of Labor , No. 10-1572 (8th Cir. Dec. 30, 2010) (per curiam)(unpublished) (Case below ARB No. 10-005, ALJ No. 2009-ERA-4), the Court of Appeals denied the employee's petition for review of a final order of the ARB dismissing his appeal for failure to prosecute. The Court concluded that the ARB's decision was not arbitrary, capricious, an abuse of discretion, contrary to the law, or unsupported by substantial evidence in the record.

[Nuclear and Environmental Whistleblower Digest XVIII C 8]
DISMISSAL FOR CAUSE; ARB; FAILURE TO FILE TIMELY BRIEF OR REQUEST FOR EXTENSION

In Mugleston v. EG&G Defense Materials, Inc. , ARB No. 04-060, ALJ No. 2002-SDW-4 (ARB June 30, 2004), the ARB dismissed an appeal where the Complainant failed to file a timely brief and did not file a motion for an extension of time to file the brief until nearly three months after the brief was due. The Board, while sympathetic to counsel's situation, found that an illness in the attorney's family and a busy litigation schedule did not excuse the failure to file a timely brief or request for an extension.

XVIII C 8 Failure to prosecute

Billings v. Tennessee Valley Authority, 89-ERA-16 and 25, and 90-ERA-2, 8 and 18 (Sec'y July 29, 1992).

[Nuclear and Environmental Whistleblower Digest XVIII C 8]
DISMISSAL FOR CAUSE; FAILURE TO FILE APPELLATE BRIEF

In Colley v. U.S. Dept. of Energy , ARB Nos. 04-089, 05-071, ALJ Nos. 2004-ERA-18 and 19 (ARB Nov. 15, 2005), the Complainant failed to file an opening brief and the ARB issued an order to show cause why the appeal should not be dismissed for that failure. The Complainant was subsequently granted three extensions of time. When she eventually responded, she did not address her failure to file an opening brief but merely addressed the merits of the ALJ's decision.

The Board had expressly warned the Complainant that the merits of the case would not be considered until she demonstrated good cause for the failure to file an opening brief. Even taking into consideration the Complainant's pro se status, the Board found that the circumstances required dismissal of the appeal.

[Nuclear and Environmental Whistleblower Digest XVIII C 8]
DISMISSAL FOR CAUSE; FAILURE TO SHOW GOOD CAUSE FOR FAILURE TO FILE TIMELY BRIEF BEFORE THE ARB

Failure to show good cause for failure to timely file a brief with the ARB is grounds for dismissal of the ARB appeal. Steffenhagen v. Securitas Sverige, AB , ARB No. 04-034, ALJ No. 2004-ERA-3 (ARB May 20, 2004).

[Nuclear & Environmental Whistleblower Digest XVIII C 8]
DISMISSAL FOR LACK OF PROSECUTION; FAILURE TO FILE TIMELY APPELLATE BRIEF

In Vincent v. Laborers' International Union Local 348 , ARB No. 02-066, ALJ No. 2000-ERA-24 (ARB July 30, 2003), the ALJ had recommended dismissal based on a finding that Respondent was not a covered respondent under the CERCLA or SWDA (Complainant had earlier withdrawn complaints brought under the ERA and other environmental statutes). Complainant filed a petition for review by the ARB and a briefing schedule was issued. Subsequently, Complainant's attorney withdrew and the ARB extended the time for filing an appellate brief. Complainant never filed a brief. The ARB, noting that it had held that 29 C.F.R. § 24.8(a) and (b) had been construed to require the filing of an appellate brief dismissed the complaint for lack of prosecution.

[Nuclear & Environmental Whistleblower Digest XVIII C 8]
DISMISSAL FOR CAUSE; FAILURE TO FILE TIMELY BRIEF

In Pickett v. Tennessee Valley Authority , ARB No 02 076, ALJ NO. 2001 CAA 18 (ARB Oct. 9, 2002) and McQuade v. Oak Ridge Operations Office , ARB No. 02-087, ALJ Nos. 1999-CAA-8 to 10 (ARB Oct. 18, 2002), the ARB dismissed appeals based on Complainant's counsel's failure to file a timely brief or request for an extension of time on attorney's fee issues. The ARB grounded the dismissals on the inherent power of a court to dismiss a case for lack of prosecution.

In McQuade , the petitioner was Complainants' former counsel, who was seeking review of the ALJ's recommended decision not to award him attorneys' fees. In McQuade , counsel missed the ARB's initial deadline for filing a brief. The ARB was not persuaded by counsel's response to an order to show cause, in which he alleged that he had a heavy trial schedule and that OALJ had failed to provide him with a requested transcript. The hearings mentioned by counsel occurred more than a month after the brief due date.

[Nuclear & Environmental Whistleblower Digest XVIII C 8]
DISMISSAL; FAILURE TO PROSECUTE; FIVE FACTOR TEST

In Reid v. Niagara Mohawk Power Corp. , ARB No. 00 082, ALJ No. 2000 ERA 23 (ARB Aug. 30, 2002), Complainant wrote to the Chief ALJ in 2000 requesting a report on the status of a case he had purportedly filed seven years earlier. Although the OALJ had no record of a hearing request, Complainant produced a fax transmission confirmation sheet bearing the number of the OALJ administrative offices rather than the Docket section. The Associate Chief ALJ accepted the fax confirmation sheet as adequate proof of filing and therefore accepted the case as docketed for hearing. The Respondent thereafter filed a motion with the assigned presiding ALJ to dismiss for want of prosecution. The ALJ granted the motion. In the hearing before the ALJ on the motion to dismiss, Complainant explained that although he had filed another hearing request with DOL OALJ near to the time of instant hearing request, which case had proceeded to hearing and decision in a timely fashion, he did not view the seven year delay on the instant case as unusual because of his experience with other administrative forums.

On review, the ARB adopted the Second Circuit's test for determining when it is appropriate to dismiss a case for want of prosecution. The ARB quoted LeSane v. Hall's Security Analyst, Inc. , 239 F.3d 206, 209 (2d Cir. 2001), as to the factors to be considered, noting that none of the factors are individually dispositive:

[1] the duration of the plaintiff's failures, [2] whether the plaintiff had received notice that further delays would result in dismissal, [3] whether the defendant is likely to be prejudiced by further delay, [4] whether the district judge has take[n] care to strik[e] the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard . . . and [5] whether the judge has adequately assessed the efficacy of lesser sanctions.

Applying this test, the ARB determined, first, that it was significant that seven years had passed from the time the Complainant filed his hearing request until he wrote a letter to the Chief ALJ inquiring into the status of the case but also observed that it had not been the Complainant's duty to take any specific action. Rather, it had been incumbent on OALJ to schedule the hearing and notify the parties of the hearing date. In regard to the second factor, the ARB found that the Complainant had not received any specific notice that inaction would result in a dismissal of the complaint. In regard to the third factor, the ARB noted the Respondent's assertion that some witnesses were beyond the reach of subpoenas, but found that the Respondent had "not identified any specific prejudice to its case should the case proceed." In regard to the fourth factor, the ARB found that the Complainant's case did not add to court calendar congestion since it was not on the calendar, and observed that "[t]his is not a case in which a party has requested serial continuances in an effort to avoid litigating his case, and in the process has wasted the court's time and resources." The ARB did not consider factor five because it held that the Complainant had not been derelict in any duty. In conclusion, the ARB held that "given Reid's pro se status, the fact that there is no evidence in the record that Reid's failure to proceed was an intentional ploy to avoid or prolong litigation, and the fact that Reid was given no warning, we reject the ALJ's recommendation that this case be dismissed for failure to diligently pursue the case."

[Nuclear & Environmental Digest XVIII C 8]
DISMISSAL; FAILURE TO PROSECUTE

In Williams v. Lockheed Martin Energy Systems, Inc. , ARB No. 98-059, ALJ No. 1995-CAA-10 (ARB Jan. 31, 2001), the ARB affirmed the ALJ's dismissal where Complainant failed to respond to a motion for summary decision with documents or affidavits that countered the movant's documentation and affidavit. One member of the Board wrote a concurrence, however, to note that the ALJ had given Complainant extraordinary latitude in responding to the motion for summary decision, providing Complainant with over 18 months to answer the motion, and even "one last chance." Although the ARB member commended the ALJ's patience, he observed that such repeated failures to file pleadings could be viewed as a failure to prosecute, and stated that the ALJ would have been justified in dismissing the case on that ground.

[Nuclear & Environmental Digest XVIII C 8]
FAILURE TO PROSECUTE

In Reid v. Niagara Mohawk Power Corp. , ARB No. 00-082, ALJ No. 2000-ERA-23 (ALJ August 30, 2000), the OALJ docket computer did not show a record of Complainant's case. Subseqently, Complainant presented evidence to the Associate Chief Judge that he had filed a request for hearing by fax approximately seven years earlier. On this basis, the Associate Chief Judge directed that the case be docketed, and assigned the case to a judge for hearing. Respondent then filed a motion to dismiss based on Complainant's failure to use a telegram as the regulations in effect at the time required, and based on Complainant's failure to prosecute the claim for seven years. The ALJ conducted a hearing on the motion, and subsequently issued a recommended decision finding that the timely filing by fax was in substantial compliance with the regulations and therefore not a sufficient ground for dismissal of the complaint, but that Complainant's permitting the case to lay dormant for nearly seven years had materially prejudiced Respondent's ability to defend the case. For instance, witnesses who had left Respondent's employ could not be compelled to attend a hearing given the lack of authority by an ALJ to issue a subpoena in an ERA whistleblower case. The ALJ was unpersuaded by Complainant's vague testimony that he made "on and off" attempts over the years to inquire into the status of the case, or the argument that depression had rendered him unable to inquire diligently into the status of his case. On this basis, the ALJ recommended a dismissal with prejudice.

[Nuclear & Environmental Digest XVIII C 8]
DISMISSAL FOR FAILURE TO PROSECUTE

In Mastrianna v. Northeast Utilities Corp. , ARB No. 99-012, ALJ No. 1998-ERA-33 (ARB Sept. 13, 2000), the ALJ recommended dismissal for failure to file a timely complaint under the ERA. Complainant appealed to the ARB, but after several extensions of time and a missed teleconference by Complainant's attorney, failed to file a brief. The ARB, analogizing to the inherent power of the courts to dismiss a case for lack of prosecution, found that it must manage its docket in an effort to achieve the orderly and expeditious disposition of cases. Under the circumstances, it dismissed the appeal based on failure to prosecute the petition for review of the ALJ's recommended decision. The ARB noted that dismissal of the petition for review rendered the ALJ's decision the final order of the Secretary pursuant to 29 C.F.R. § 24.7(d).

[Nuclear and Environmental Whistleblower Digest XVIII C 8]
DISMISSAL; FAILURE TO PROSECUTE

In Solnicka v. Washington Public Power Supply System , ARB No. 00-009, ALJ No. 1999-ERA-19 (ARB Apr. 25, 2000), the ARB denied Complainant's fifth request for an extension of time to file his appellate brief, and dismissed the appeal for failure to prosecute, where Complainant had been warned after the fourth extension that further extensions would be granted only for exceptional circumstances, the fifth request for an extension had been filed on the day before the brief was due, and the fifth request for an extension was based on a request to delay briefing until the issuance of a report by Respondent concerning the safety of cranes an issue not relevant to the basis for Complainant's appeal. The ARB wrote:

Courts possess the "inherent power" to dismiss a case for lack of prosecution. Link v. Wabash Railroad Co. , 370 U.S. 626, 630 (1962). This power is "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Id. at 630-631. Like the courts, this Board must necessarily manage its docket in an effort to "achieve the orderly and expeditious disposition of cases." Given Solnicka's failure to submit an initial brief as ordered, we find that Solnicka has failed to prosecute his case.

XVIII c 8 Failure to prosecute based on mental incompetence; limits on Department's need to be accommodating

In Guity v. Tennessee Valley Authority, 90-ERA-10 (Sec'y May 3, 1995), the complaint had been dismissed without prejudice based on the Complainant's failure to prosecute as a result of mental incompetence. The Complainant had failed to take any action for three years. The dismissal was with leave to file a motion to reopen within 30 days of the treating psychologist's declaration that the Complainant was competent to litigate the case, with a one year limitation on the opportunity to file such a motion. Several additional conditions were required to be included in the motion.

Just prior to the end of the one year period, the Complainant did file such a motion with statements of a treating psychologist and a psychiatrist. The motion and underlying affidavits requested that the matter be reopened and the Complainant be permitted to proceed at a cautious or slow pace. The Secretary accepted the affidavits as demonstrating that the Complainant is competent to proceed.

The Secretary, however, noted that more than five years had passed since the Complainant filed his complaint, and that the Department had been very accommodating in awaiting Complainant's prosecution of the complaint. Further delay could not be permitted, however, because "[t]he rights of a respondent to have claims against it resolved in a timely fashion must also be considered." Thus, on remand, the scheduling of the case was directed to be "like any other ERA case." The Complainant was not to "receive any further significant postpostments or enlargements of time based upon his emotional or psychological state." If the Complainant became unable to prosecute because of his emotional or psychological state, the Secretary directed the ALJ who is assigned on remand to issue a recommended decision and order dismissing the complaint with prejudice. Citing Mack v. alone and Hyde, Inc., 1994 U.S. App. LEXIS 8131, No. 93-5814 (6th Cir. Apr. 15, 1994) (affirming District Court's dismissal for failure to prosecute Title VII case after seven years, notwithstanding plaintiff's mental illness).

XVIII C 8 Dismissal for failure to prosecute

In Guity v. Tennessee Valley Authority, 90-ERA-10 (Sec'y Jan. 24, 1994), the Secretary dismissed a case without prejudice and with leave to Complainant to file a motion to reopen within 30 days of Complainant's treating physician or psychologist's declaration of Complainant's competence to litigate the case. The motion is to demonstrate by a preponderance of the medical evidence that Complainant had been mentally incompetent throughout the proceeding, that his attorney was unable to prosecute this case without Complainant's assistance which was precluded by his incompetence, and that such motion is filed within 30 days of his achieving competence. The Secretary permitted one year for the filing of such a motion, and ordered that if no such motion is filed timely, the dismissal shall be with prejudice. The motion would be filed with the OAA on behalf of the Secretary.

This Order is substantially in conformance with the recommendation of the Deputy Chief ALJ, who had recommended dismissal for failure to prosecute after issuing a number of orders attempting to get the case to hearing after a delay of several years based on Complainant's incompetence.

The Secretary noted that the ALJ assumed that the Secretary has the authority to reopen final decisions in ERA cases such as this. He also noted that he had recently ruled in Bartlik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y July 16, 1993), that there is considerable doubt (but did not resolve) whether the Secretary has the authority to reconsider a final decision. The Secretary distinguished Bartlik on the ground that here there is no issue of a request for reopening on a ground of material error. Rather, the dismissal without prejudice with leave to seek reopening is a means to ameliorate the admittedly harsh sanction of dismissal with prejudice for failure to prosecute.

The Secretary held that an administrative agency's power to control its docket is similar to that of a court. Billings v. Tennessee Valley Authority, 89-ERA-16 (Sec'y July 29, 1992). It is within the power of a court to dismiss for failure to prosecute where the plaintiff's mental incompetence has lead to stagnation in the case. See Mavy-Amenberg v. Marsh, 1991 U.S. App. LEXIS 20919 (9th Cir. 1991) (reported as table case at 942 F.2d 790). The Department of Labor has the inherent authority not to allow a case to remain open in perpetuity.

The Secretary also held that although it is not necessary to show prejudice to the defendant as a basis for dismissal for failure to prosecute, he agreed with the ALJ that the passage of time could hamper TVA's ability to prepare a defense.

The Secretary noted that a dismissal for failure to prosecute is with prejudice and thus bars a complainant from reinstituting the case. Ball v. City of Chicago, 2 F.3d 752, 753 (7th Cir. 1993). It is considered a harsh sanction, Id. at 754, and a court should dismiss for failure to prosecute only if it has determined that a less severe remedy would not be effective. Id. at 758, and cases there cited. The Secretary agreed with the ALJ that the circumstances in the instant case made it unlikely that lesser sanctions would be effective.

XVIII C 8 Failure to prosecute

A dismissal for failure to prosecute in a whistleblower proceeding should be premised on the regulation at 29 C.F.R. § 24.5(e)(4)(i)(B), rather than Fed. R. Civ. P. 41(b). See Walters v. Karmichael Tank Service, 90-STA-12 (Dep. Sec'y Jan. 22, 1991), slip op. at 3 (dismissing complaint under 29 C.F.R. § 18.6(d) where ALJ recommended dismissal under Rule 41). Gore v. CDI Corporation, 91-ERA-14 (Sec'y July 8, 1992).

XVIII C 8 Failure to prosecute; mental incapacity

In Guity v. Tennessee Valley Authority, 90-ERA-10 (ALJ May 19, 1993) (prehearing order), the ALJ ordered that the Complainant provide a report from his physician within 60 days stating that the Complainant is competent to participate in the prosecution of his whistleblower complaint. In the event that such a report could not be submitted, the ALJ stated that he would recommend to the Secretary that this matter be dismissed based on failure to prosecute.

In Guity , the complaint had been filed on June 8, 1989, a hearing requested on December 11, 1989, and the matter continued since January 5, 1990 based on the Complainant's mental incapacity. A concurrent United States District Court action had been pending for approximately the same period of time.

On February 17, 1993, the Complainant was ordered to show cause why the matter should not be scheduled for hearing. The Respondent provided a copy of a District Court order in which that cause was administratively terminated subject to reopening if the Complainant became mentally capable. The Complainant responded generally asserting through counsel that he was progressing toward competence. No evidence in support of that assertion was submitted.

The ALJ essentially concluded that the Complainant had failed, and continued to fail, to prosecute his case, and that matter should either proceed to hearing or be dismissed.

XVIII C 8 Failure to prosecute

In Guity v. Tennessee Valley Authority, 90-ERA-10 (ALJ Aug. 19, 1993), the ALJ recommended dismissal of an ERA whistleblower complaint based on failure to prosecute even though the reason for the failure was Complainant's mental incapacity. The complaint had originally been docketed with OALJ on December 12, 1989. The ALJ assigned to the case continued it twice, the second continuance dated January 25, 1991, was based on Complainant's mental condition and an indefinite stay placed on a concurrent United States District Court action. The continuance was to last until 90 days following completion of the District Court action. Status reports were filed in November 1991, and one further communication was made in December 1991, and the case was placed on the suspense Docket.

On February 13, 1993, the Deputy Chief Judge issued an order to show cause why the stay should not be lifted and the matter scheduled for hearing. On April 13, 1993, a second order to show cause was issued based on Complainant's apparent failure to respond to the first order to show cause. Complainant submitted documentation, however, showing that he had timely responded (albeit with an unauthorized facsimile), and grounds for dismissal such as failure to comply with a lawful order and abandonment were found not to be present. The Deputy Chief Judge, however, found that Complainant had failed to establish grounds for not going forward with the case, and afforded Complainant 60 days to submit a physician's report of competency, stating that in the event such a report could not be submitted, he would recommend to the Secretary that the matter be dismissed for failure to prosecute. In his response to this order, Complainant supplied a medical report indicating that Complainant was not yet competent, but indicating that he would eventually be able to complete his case.

The Deputy Chief Judge found that it was within OALJ's province to regulate its Docket, and that a dismissal for failure to prosecute could be initiated by the trial judge. He found that the time limitation expressed in the original continuance by the ALJ had terminated because the District Court had "administratively terminated" the action on September 17, 1992, although leaving open the possibility of a reopening. The Deputy Chief Judge found that the medical report was merely a description of why the case could not go forward rather than a positive action in prosecution of the case, and noted that five additional months had already passed since the first order to show cause with no indication that the case would soon go forward.

Balancing these and other factors, the Deputy Chief Judge recommended that, pursuant to Fed. R. Civ. P. 41(b), the Secretary dismiss the complaint without prejudice and with leave to file a motion to reopen, together with some other limitations.

XVIII C 8 Dismissal for failure to prosecute

XVIII C 9 Lack of jurisdiction

It is error to dismiss a case for lack of jurisdiction under the authority of 29 C.F.R. § 24.5(e)(4). That section applies only to involuntary dismissals resulting from specified actions of a complainant or complainant's representative which unnecessarily or unreasonably impede the conduct of the litigation. Wensil v. B.F. Shaw Co., 86-ERA-15, 87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29, 1990), aff'd sub nom. on another issue, Adams v. Dole, 927 F.2d 771 (4th Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991).

[Nuclear and Environmental Whistleblower Digest XVIII C 9]
DISMISSAL OF APPEAL; MOOTNESS; JURISDICTION

In Edmonds v. Tennessee Valley Authority , ARB No. 05-002, ALJ No. 2004-CAA-15 (ARB July 22, 2005), the Complainant requested the ARB to review a letter from the Chief ALJ responding to a FOIA request filed by the Complainant's counsel. In the letter, the Chief ALJ had responded to the FOIA request, but informed the Complainant that his counsel would not be permitted to file future FOIA requests on his behalf because of an order issued by the Associate Chief ALJ denying that attorney the right to represent parties before OALJ. The ARB issued an order directing the Complainant to demonstrate why his request was not moot given the Board's affirmance of the Associate Chief ALJ's order. (The Board also expressed doubt that it had the authority to review the Chief ALJ's letter at all). The Complainant did not respond and the ARB consequently dismissed the appeal.

[Nuclear and Environmental Whistleblower XVIII C 10]
DISMISSAL FOR CAUSE; INTIMIDATION OF WITNESS

In Newport v. Florida Power & Light Co. , ARB No. 06-110, ALJ No. 2005-ERA-24 (ARB Feb. 29, 2008), during a telephone conference to hear the Respondent's motion for sanctions, the ALJ learned that the Complainant had threatened witnesses and counsel. The ALJ ordered the Complainant not to threaten anyone again, and the Complainant agreed to refrain from doing so. Later a hearing was convened, and during a recess the Complainant gestured toward one of the Respondent's witnesses by drawing his finger across his own throat as if slashing the witnesses� throat. Following taking testimony about the incident, and a renewed motion for sanctions by the Respondent, the ALJ found that the gesture constituted a threat and a violation of his earlier order not to make threats. The ALJ therefore denied the complaint. The ARB affirmed on appeal.

[Nuclear and Environmental Whistleblower XVIII C 10]
DISMISSAL FOR CAUSE; COUNSEL'S DELIBERATE AND CONTEMPTUOUS REFUSAL TO COMPLY WITH LAWFUL ORDER OF THE ALJ

An ALJ may recommend dismissal of an ERA whisteblower complaint based upon a party's failure to comply with a lawful order. 29 C.F.R. § 24.6(e)(4)(i). Dismissal of a complaint for failure to comply with the ALJ's lawful orders, however, is a very severe penalty to be assessed in only the most extreme cases. In Puckett v. Tennessee Valley Authority , ARB No. 03-024, ALJ No. 2002-ERA-15 (ARB June 25, 2004), the ARB affirmed the ALJ's recommended dismissal of the complaint where the record supported the ALJ's finding that "Counsel's failure to comply with the Scheduling Order was a deliberate unjustified delaying tactic and a deliberate expression of contempt for the Court...." USDOL/OALJ Reporter at 3 (citations omitted). The ARB also found that the record supported the ALJ's finding that "Counsel has exhibited a drawn out history of deliberately proceeding in a dilatory manner and his continued disregard of the Court's Orders indicates that with anything less than dismissal, counsel will never understand the severity of potential consequences for not complying with the Court's Orders...." USDOL/OALJ Reporter at 3-4 (citations omitted).

[Nuclear and Environmental Whistleblower Digest XVIII C 10]
ATTORNEY MISCONDUCT AS GROUNDS FOR DISMISSAL OF COMPLAINT; COMPLAINANT NOT PERMITTED TO DISASSOCIATE WITH MISCONDUCT WHERE HE WAS AWARE OF IT AND APPEARED TO RATIFY IT

In Puckett v. Tennessee Valley Authority , ARB No. 03-024, ALJ No. 2002-ERA-15 (ARB June 25, 2004), the ARB affirmed the ALJ's dismissal of the complaint based on the Complainant's counsel's deliberate and contemptuous refusal to comply with a lawful order. The ARB rejected the Complainant's request to permit him to obtain a new attorney and proceed with the case where the Complainant had been aware of his counsel's contumacious refusal to comply with the ALJ's scheduling order, but nevertheless, he continued to ratify his counsel's actions even after the case had been appealed to the ARB.

XVIII C 10 Denial of relief where complainant knowingly presents misleading evidence

In Willy v. The Coastal Corp., 85-CAA-1 (ALJ Nov. 29, 1988), the Complainant lied in depositions and in testimony at the hearing in regard to his post-discharge employment, indicating that he had only part-time work, when in fact he was employed full-time at a salary exceeding the amount he made when discharged by the Respondent. The ALJ cited Iowa Beef Packers, Inc. v. NLRB, 331 F.2d 176, 181 (8th Cir. 1964) for the proposition that

Where a party has knowingly presented misleading evidence, forfeiture of that party's remedy is required to further the policy of the Act under which relief is sought.

He cited Mas v. Coca Cola Co., 163 F.2d 505 (4th Cir. 1947) for the proposition that

Relief under such circumstances is to be withheld, not for the protection of the other party, but rather to safeguard the integrity of the adjudicative process.

Accordingly, the ALJ concluded that the Complainant was entitled to no relief.

XVIII.C.10. Failure to make restitution

In Macktal v. Brown & Root, 86-ERA-23 (ALJ July 6, 1994), the ALJ recommended dismissal of Complainant's complaint on the ground that Complainant had failed to make restitution for monies paid pursuant to a settlement agreement that had latter been rejected by the Secretary of Labor.

XVIII C 11 Repetitive claims