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Allen v. EG & G Defense Materials, Inc., 1997-SDW-8 and 10 (ALJ Aug. 21, 2001)
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Case No.: 1997-SDW-00008
Case No.: 1997-SDW-00010
Issue date: 21Aug2001
In the Matter of:
TRINA ALLEN,
Complainant,
v.
EG & G DEFENSE MATERIALS, INC.,
Respondent.
Before: Thomas M. Burke
Associate Chief Administrative Law Judge
Respondent, EG&G Defense Materials, Inc., moves for reconsideration of a Default Judgment issued by Judge Samuel J. Smith in this matter over thirty months ago. Judge Smith issued the default judgement on January 26, 1998 for Complainant, Trisha Allen, who filed complaints with the Department of Labor under the employee protection provisions of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. §300j-o(i), the Clean Air Act ("CAA"), 42 U.S.C. §7622, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §9610, the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. § 1367, the Solid Waste Disposal Act (SWDA"), 42 U.S.C. §6971, and the Toxic Substances Control Act ("TSCA"), 15 U.S.C. §2622, and the regulations promulgated thereunder and contained at 29 C.F.R. Part 24.
The case was assigned to Judge Smith on September 11, 1997. On January 26, 1998, Judge Smith issued an Order Granting Complainant's Motion for Default Judgment. Judge Smith held that Complainant was entitled to default judgement because Respondent failed to answer the complaints filed by Complainant with the Occupational Safety and Health Administration.1 Judge Smith reasoned that 29 C.F.R. §18.5(a) requires an answer to be filed within thirty days of the service of the complaint and §18.5(b) authorizes an Administrative Law Judge to enter a default judgement upon the failure of a respondent to do so. Respondent filed a Motion for Reconsideration with Judge Smith and an Interlocutory Appeal to the Administrative Review Board, both of which where denied.
On September 17, 1998, Judge Smith, sua sponte, entered an Order holding this case in abeyance until the Administrative Review Board issued a decision in Jones v. EG & G Defense Materials, Inc., ARB No. 95-CAA-3. The ARB had under consideration in Jones a constitutional issue identical to the one raised by the Respondent here. On October 23, 1998, Judge Smith continued the stay pending an appeal of the Jones case to the Tenth Circuit Court of Appeals. On May 11, 2001, the Tenth Circuit dismissed the Jones case with prejudice in light of a settlement reached by the parties therein. Consequently, Judge Smith's January 1998 entry of Indefinite Stay of the Proceedings is hereby vacated.
Subsequent to Judge Smith's order of October 23, 1998 and prior to Respondent's June 26, 2001 Motion for Reconsideration, Judge Smith retired from this Office. The regulations provide that in the event the administrative law judge designated to conduct the hearing, in this case Judge Smith, becomes unavailable, the Chief Administrative Law Judge may designate another administrative law judge for the purpose of further hearing or other appropriate action. 29 C.F.R. §18.30. Pursuant thereto, on July 27, 2000, the undersigned Administrative Law Judge was assigned to handle all pending matters in this case.
Motion For Reconsideration
Complainant argues that Respondent's motion should be stricken as not provided for in the rules, or as an attempt to re-litigate a matter already litigated and decided. Complainant further argues that reconsideration now in light of the time that has elapsed since the default judgement will severely prejudice Complainant in her attempt to put forth evidence to establish her case. Complainant cites Shelton v. Oak Ridge National Laboratory, 95-CAA-19 (ALJ Apr. 21, 1998) and Macktal v. Brown & Root, Inc., 86 ERA 23 (ARB Nov. 20, 1998) for the proposition that a motion for reconsideration must be requested within a reasonable time.
Claimant is correct that generally, a motion for reconsideration not submitted timely is to be given little or no attention. However, this matter unfortunately has been stayed for almost three years, thus such a motion could not have been filed until the present time. More importantly, Judge Smith's Order granting a default judgement is clearly erroneous, and it would serve no purpose to allow the Order to stand, when ultimately the matter would be returned on appeal to allow the Employer to contest liability. See discussion on default judgment, supra.
The Administrative Review Board's recent discussion of the principle of stare decisis in Childers v. Carolina Power & Light. Co., ARB No. 98-077, ALJ No. 1997-ERA-32 (ARB Dec. 29, 2000) wherein it scrutinized the policy behind adhering to a decision that does not withstand scrutiny is apropos here. The Board reasoned that:
[W]hen governing decisions are unworkable or are badly reasoned, "[the Supreme Court] has never felt constrained to follow precedent." (citations omitted) The reasons for reversing an earlier ruling are always sui generis, but if a useful generalization can be made, it is that "[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved. The opposite is true in cases . . . involving procedural and evidentiary rules. (citations omitted)"
Accordingly, as no recommended decision and order has been issued in the present case, the undersigned administrative law judge has jurisdiction and has the authority to reconsider Judge Smith's January 26, 1998 Motion for Default Judgment, and, since the decision of Judge Smith was clearly erroneous, it would serve no purpose to allow the order to stand.
Default Judgment Judge Smith granted Complainant's motion for summary judgment because Respondent did not submit an answer to the complaints that Complainant filed with OSHA2 Judge Smith held that Respondent was required by 29 C.F.R. Part 18, the Office of Administrative Law Judge's rules of procedure, and §554 of the Administrative Procedure Act to file an answer with the OALJ within 30 days of Complainant's filing of her complaints with OSHA.
Judge Smith's order granting default judgment was in error. 29 C.F.R. Part 18 does not impose an obligation on an employer to answer a complaint filed by one of its employees with OSHA under the employee protection provisions of the environmental protection statutes. The filing of complaints under these employee protection statutes is governed by 29 C.F.R. Part 24. Part 24 imposes obligations upon the person filing the complaint, i.e. form, timing and place of filing, and on the Assistant Secretary to investigate the complaint. But, it imposes no obligations on the employer. In fact, although there is a requirement that the employer be served with a copy of the complaint by OSHA, there is no mandated time for service, thus it is possible and even probable that a respondent would not be aware of being named in a complaint for thirty days.3
29 C.F.R. Part 18, upon which Judge Smith based his decision, by its terms governs adjudicatory proceedings before the Office of Administrative Law Judges. It does not govern investigatory actions of OSHA or complaints filed with OSHA or the Assistant Secretary. A complaint for which Part 18 requires an answer is defined as a document initiating an adjudicatory proceeding, and an "adjudicatory proceeding" is defined as a judicial type proceeding leading to the formulation of a final order. See 29 C.F.R. §18.2(a) and (d). Complaints filed with OSHA initiate an investigation by OSHA, they do not initiate an adjudicatory proceeding. OALJ has no jurisdiction over such complaints until an aggrieved party files a timely appeal from OSHA's determination with the Chief Judge. Until the Office's jurisdiction attaches, its rules of procedure do not apply. See §18.1, Scope of Rules. In Staskelunas v. Northeast Utilities Co., 1998-ERA-8 (ARB May 4, 1998) the Administrative Review Board, at footnote 5, declined to apply OALJ procedural rules to events that took place prior to the time when the case came within the jurisdiction of the OALJ.
This issue was squarely addressed by the Secretary in English v. General Electric Co., 85-ERA-2 (Sec'y Feb. 13, 1992), where the Secretary held that a complaint filed with the Wage-Hour Administrator pursuant to Section 24.3 is not a complaint under the ALJ Rules of Practice and does not require an answer to be submitted within 30 days, in contrast to the requirements under Section 18. The Secretary reasoned:
Complainant argues that she was entitled to default judgment when she moved before the ALJ because Respondent did not file an "answer" to her "Complaint" within 30 days after service as required by the ALJ Rules of Practice, 20 C.F.R. §18.5(a). However, the complaint filed by Complainant with the Wage-Hour Administration on August 24, 1984 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 ERA simply initiates an investigation. 29 C.F.R. §24.4. A hearing is initiated, after a determination by the Wage-Hour Administration, by filing a request for a hearing by telegram with the Chief Administrative Law Judge. 29 C.F.R. §24.4(d)(2). The ALJ properly denied Complainant's motion for default judgment. Id. at 7 (footnotes omitted).
Judge Smith recognized the Secretary's decision in English but denied its applicability in the present case because Respondent had "treated the complaint as a formal proceeding and subject to the rules contained in Part 18 in a prior motion." Judge Smith's analyses is erroneous. A party can not be sanctioned for noncompliance with an inapplicable regulation merely because the party mistakenly believes that the regulation governs. Moreover, a party can not select which regulations will govern its conduct.
Judge Smith's reliance on §554 of the Administrative Procedure Act is in error for the same reason that his reliance on Part 18 was incorrect, that is, § 554 governs only adjudicatory proceedings. §554(a) reads: "this section applies...in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing..." As previously explained, a complaint before OSHA triggers an investigation, not an adjudicatory proceeding.
In sum, Judge Smith's Order granting default judgment was in error as not authorized by, and contrary to, the regulatory framework established under Part 24 and Part 18.
IT IS HEREBY ORDERED that:
1) Respondent's Motion for Reconsideration is GRANTED;
3) Judge Smith's Entry of Default issued January 26, 1998 is VACATED.
THOMAS M. BURKE
Associate Chief Judge
1Prior to March 11, 1998, the regulations provided that complaints be filed with the Office of the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor. However, pursuant to the "Pilot Project to Create Concurrent Authorities and Responsibilities for the Assistant Secretary for Occupational Safety and Health and the Assistant Secretary for Employment Standards With Respect to Certain Whistleblower Protection Laws and Certain Laws Establishing Labor Standards Affecting Field Sanitation and Migrant Housing," effective in 1995, OSHA began to handle whistleblower complaints concurrently with the Wage and Hour Division. 60 Fed. Reg. 3655 (Jan. 18, 1995).
2Complainant actually filed an initial complaint on April 28, 1997, an amended complaint on June 4, 1997, and a second complaint on July 29, 1997.
3Interestingly, Part 24 was amended effective March 11, 1998 by the addition of § 24.5 which obligates OSHA in complaints filed under the Energy Recovery Act to provide the employer with a copy of the complaint and advise the employer that it may submit evidence to rebut the allegations of the complaint. If a respondent desires to submit evidence, it must do so within five days. If respondent does not respond there are no repercussions; the Assistant Secretary is mandated to proceed with the investigation. Thus, failure to respond after notification of the complaint at the investigatory stage would not result in a default, but merely that the Assistant Secretary would continue to evaluate the merits of the allegations without the benefit of the respondent's evidence.