DOL Home > OALJ > Whistleblower > White v. The Osage Tribal Council, 95-SDW-1 (ALJ Mar. 30, 1998) |
Date: March 30, 1998
Case No: 95-SDW-1
In the Matter of
CHRIS WHITE
Complainant
v.
THE OSAGE TRIBAL COUNCIL
ON BEHALF OF THE OSAGE TRIBE
OF INDIANS
Respondent
Background
I.
On May 31, 1996, Judge Quentin P. McColgin, formerly of this office, issued a Recommended Decision and Order in this case (1) requiring reinstatement of the Complainant with back pay and benefits from the time of his termination; (2) awarding $40,000.00 in compensatory damages; (3) awarding $60,000.00 in punitive damages; and (4) requiring expungement from Complainant's personnel file of any reference to his "unlawful" termination.
On July 9, 1996, Judge McColgin additionally awarded Complainant costs, expenses and attorney's fees in the amount of $25,281.19.
Judge McColgin's Decision and Order was reviewed by the Administrative Review Board; and by Decision and Order dated August 8, 1997, the Administrative Review Board adopted Judge McColgin's general recommendations as to Complainant's entitlement to reinstatement, back pay, compensatory damages and fees and expenses, but remanded the matter to the Office of Administrative Law Judges "to determine the precise amount of back pay, fees and costs incurred to date." While the Board reversed the award of punitive damages, the Board let stand the compensatory damage award of $40,000.00, as well as the expungement of Complainant's personnel records.
The record was then returned to the Office of Administrative Law Judges for evaluation in accordance with the Board's direction, and because Judge McColgin was no longer with this office, the case was assigned to the undersigned in September, 1997. A briefing schedule was established concerning the two1 issues on remand and in the months that followed the parties submitted the following arguments and evidence in support of their respective positions:
When Respondent initially filed its "Motion to Toll Briefing Period" on the grounds that the Tenth Circuit U.S. Court of Appeals had agreed to hear Respondent's appeal on the merits, I denied the Motion despite the fact that Complainant took no position regarding the same. I did so under the belief that since I was under no specific order staying my ruling on the two issues remanded to this office, it would be most efficient to finalize these issues at this time. Now, however, I question the wisdom of my ruling and reverse that denial of Respondent's motion.
Clearly, as shown by Exhibit A, the Tenth Circuit U. S. Court of Appeals has agreed to review the Respondent's appeal on the merits, the record has been returned by this office to the Administrative Review Board who, by correspondence dated February 3, 1998, forwarded a certified list of documents filed of record in this case through September 10, 1997, to the Court of Appeals. The only documents not included were those seven which have been accumulated before the Office of Administrative Law Judges since September, 1997, as enumerated in this order.
For me now to rule on issues which may or may not any longer exist in this case after the Court of Appeals' consideration of the matter, is poor judicial economy and foreseeable could only add confusion to the existing record on appeal. Consequently, because the issues for which this case was remanded for resolution might be altered or mooted totally, and because any recommendation I might enter at this time would not be acted upon until the Tenth Circuit rules on the appeal, I find the better approach is to return this record to the Administrative Review Board.
The additional evidence and arguments have been collected regarding the two issues for which the case was previously remanded to the Office of Administrative Law Judges. If after the Tenth Circuit's ruling, the Board determines these two issues remain to be adjudicated and are appropriate for remand, they, of course, will so instruct. Until that time occurs, it is my opinion the case should remain at the Administrative Review Board level awaiting outcome of Respondents' appeal to the Tenth Circuit.
SO ORDERED this 30th day of March, 1998, at Metairie, Louisiana.
C. RICHARD
AVERY
Administrative Law
Judge
CRA:kw
1 Though not clarified in the order of remand, because Judge McColgin issued a subsequent Decision and Order awarding costs and attorney's fees on July 9, 1996, that remanded issue is apparently limited to recoverable costs and fees incurred subsequent to July 9, 1996.