ARB CASE NO. 98-159
ALJ CASE NO. 97-ERA-6
DATE: November 30, 2000
In the Matter of
LAXMI N. KHANDELWAL,
SOUTHERN CALIFORNIA EDISON,
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances: For the Complainant:
Stephen M. Kohn, Esq., Debra G. Oliver, Esq., Kohn, Kohn & Colapinto,
For the Respondent:
Thomas A. Schmutz, Esq., Paul J. Zaffuts, Esq., Morgan, Lewis & Bockius
L.L.P.,Washington, D.C., Beth J. Pearce, Esq., Southern California Edison,Rosemead, California
SECOND DECISION AND ORDER OF REMAND
This case arises under the employee protection provision of the Energy
Reorganization Act of 1974, as amended ("ERA"), 42 U.S.C. §5851 (1994).
Complainant Laxmi N. Khandelwal alleges that he was terminated by Respondent in retaliation for
engaging in activities protected under the ERA. This case is before the Board for the second time.
Khandelwal initially filed his whistleblower complaint with the Labor
Department in September of 1995. After investigation, Khandelwal's complaint was referred to
an Administrative Law Judge ("ALJ") for hearing. However, on November 26, 1996,
Respondent filed a Motion for Summary Decision. The ALJ granted Respondent's Motion in a
Recommended Order issued January 17, 1997, in which he recommended that Khandelwal's
complaint be dismissed.
Khandelwal appealed the ALJ's decision to this Board, which rejected the
ALJ's recommendation in a Decision and Order of Remand dated March 31, 1998. The Board
remanded the case to the ALJ for a hearing on the merits of the complaint.
On remand, the ALJ found that Khandelwal had engaged in activity protected
under the ERA. However, the ALJ also found that Khandelwal failed to prove by a preponderance
of the evidence that Respondent's decision to terminate him was motivated, in whole or in part, by
his protected activity. Therefore, by Recommended Decision and Order dated August 12, 1998,
the ALJ again recommended that the Board dismiss Khandelwal's complaint. This appeal followed.
On appeal, Khandelwal disputes the ALJ's conclusion on the merits that
Respondent did not discriminate against him when it terminated his employment. In addition,
Khandelwal argues that the ALJ committed reversible error by improperly denying his request for
a continuance as well as the opportunity to engage in meaningful discovery.
We have jurisdiction pursuant to the Energy Reorganization Act, 42 U.S.C.
§5851, and the implementing regulations found at 29 C.F.R. §24.8 (2000).
STANDARD OF REVIEW
Under the Administrative Procedure Act, we have plenary review over an
ALJ's factual and legal conclusions. See 5 U.S.C. § 557(b). As a result, in this Part 24 case,
the Board is not bound by the conclusions of the ALJ, but retains complete freedom to review
factual and legal findings de novo. See Masek v. Cadle Co., ARB Case No. 97-
069, ALJ Case No. 95-WPC-1, Dec. and Ord., Apr. 28, 2000, slip op. at 7.
We review allegations of procedural errors by the ALJ under the abuse of
discretion standard. See generally Malpass v. General Electric Co., Case Nos. 85-ERA-
38, -39, Sec'y Fin. Dec. and Ord., Mar. 1, 1994, slip op. at 5-6 (discussing ALJ's authority to
conduct hearings under 5 U.S.C. §556(c)).
Khandelwal argues that the ALJ committed reversible error in his conduct
of this case following the Board's March 1998 remand: (1) that the ALJ erred in denying
Khandelwal a continuance so that he would have a reasonable opportunity to obtain counsel; and
(2) that the ALJ committed errors in the discovery process. For the reasons discussed below, we
Following our remand of this case, the ALJ issued two orders on April 7,
1998: one order set the case for hearing on May 28, 1998, while the other, in part, established
a timetable for discovery. According to the discovery order, the parties were required to complete
discovery and depositions by May 8, 1998.
On April 13, 1998, Khandelwal mailed and telefaxed a motion for
continuance, requesting that the hearing date be postponed for 30 days. In support of the motion,
Khandelwal submitted a jury summons for April 20, and stated that he would not have the option
of avoiding that obligation because he had postponed fulfilling that responsibility on two previous
occasions. He also stated that he had been acting pro se up until that time and that he
"may have to find and hire an attorney who has expertise in these kind [sic] of cases."
In addition, Khandelwal's motion stated that he did not believe that he could complete discovery
by May 8, 1998.
By Order dated April 16, 1998, the ALJ denied Khandelwal's motion stating,
"Complainant has had ample time to retain counsel for this matter, and Complainant's
scheduled jury duty is not prohibitive of the necessary discovery." Thus, the ALJ denied
Khandelwal's request for additional time, both for the purpose of obtaining counsel and for the
purpose of conducting discovery. The one-paragraph order denying Khandelwal's request did not
cite any regulatory or other legal standard against which the ALJ evaluated Khandelwal's request.
The determination whether to grant a continuance is a question committed
to the sound discretion of the ALJ and will not be disturbed absent a clear showing of abuse. In
reaching a decision to grant or deny a continuance, the ALJ may properly consider the length of
the delay requested, the potential adverse effects of that delay, the possible prejudice to the
moving party if denied the delay, and the importance of the testimony that may be adduced if the
delay is granted. See PATCO v. FLRA, 685 F.2d 547, 588 (D.C. Cir. 1982);
Administrator, Wage and Hour Div., and Nurses PRN of Denver v. HCA Med. Ctr. Hosp.,
ARB Case No. 97-131, ALJ Case No. 94-ARN-1, Second Ord. of Rem., June 30, 1999, slip
op. at 9-11; see also 9 Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure §2352, Continuances (2d ed. 1995) (concerning practice under the FRCP). The ALJ should also take into consideration that complaints filed under the ERA are subject
to an expedited process. See 29 C.F.R. §§24.1(a), 24.4 - 24.8; see
also 41 U.S.C. §5851(b) (requiring Secretary's decision in ERA case be issued within
90 days of receipt of complaint); 29 C.F.R. §24.6(a) ("no requests for postponement
shall be granted except for compelling reasons or with the consent of all parties"). However,
even an expedited process must be applied in a manner that is fundamentally fair and thus provides
the parties an adequate opportunity for presentation of the case. See Timmons v. Mattingly
Testing Servs., ARB Case No. 95-ERA-40, Dec. and Ord. of Rem., June 21, 1996, slip op.
Opportunity to retain counsel In this case, we find that it was
unreasonable for the ALJ to deny Khandelwal's request for a continuance to obtain counsel. First,
the ALJ's conclusion that Khandelwal had ample opportunity to engage counsel is flawed. The
"ample opportunity" referred to by the ALJ includes the period prior to the issuance
of the ALJ's January 17, 1997 [First] Recommended Order as well as the period during which
Khandelwal's first appeal was pending before the Board.
As to the period prior to the issuance of the ALJ's [First] Recommended
Order, Khandelwal had no meaningful opportunity to retain counsel during the very compressed
time frame for conducting discovery and responding to Respondent's summary judgment motion.
We note that, on November 18, 1996, the ALJ issued an order scheduling a hearing for December
12, 1996. Additionally, on November 26, 1996, Respondent filed a motion for summary
judgment. On November 27, 1996, the ALJ directed Khandelwal to show cause no later than
December 13, 1996 why Respondent's motion for summary judgment should not be granted. In
a letter to the ALJ dated December 5, 1996, Khandelwal advised the ALJ that he was having
difficulty engaging counsel, a problem no doubt exacerbated by the fact that he had less than 30
days notice of the hearing date.1
1 At least one court has recognized that most
attorneys would hesitate to take a case scheduled to begin trial within a month without a continuance. Lowe
v. City of East Chicago, 897 F.2d 272, 275 (7th Cir. 1990).
2 At the hearing of the case on May 28,
1998, the ALJ revisited the issue of whether Khandelwal had been afforded an adequate opportunity to obtain
counsel, beginning with December 1996 when the case was initially before the ALJ. In an exchange with
Khandelwal at the beginning of the hearing, the ALJ stated that he had given Khandelwal an extension of time
in December 1996 and, as Khandelwal had not found an attorney at that time, or since, the ALJ understood that
Khandelwal had decided that he did "not want to have an attorney." Tr. at 25-26; see Tr.
at 28. Khandelwal objected, noting, "[I]n December 5 of '96, there was no trial ." Tr. at 26. The
ALJ reiterated his view that Khandelwal had "chosen to represent [himself]." Id.
Khandelwal then reminded the ALJ that he had filed a motion for continuance in April 1998. Id. The
ALJ then recounted that his law clerk had spoken with Khandelwal by telephone at that time and had suggested
that he contact a lawyer referral service. Tr. at 27. Khandelwal responded that he had attempted to obtain
counsel but had been unable to find an attorney who was familiar with an administrative proceeding of this type.
Id. The ALJ stated, "I appreciate the fact that you were unable to get [an attorney] and you've
decided to proceed by yourself." Tr. at 28.
3 Although the Office of Administrative
Law Judges Rules of Practice and Procedure found at 29 C.F.R. Part 18 are generally applicable to hearings
under Part 24, those provisions must yield when inconsistent with the Part 24 regulations or relevant statutory
authority or executive order. 29 C.F.R. §18.1(a).
4 Khandelwal has also challenged the
ALJ's May 18 and 19, 1998 rulings limiting discovery. In view of our disposition of the case, we need not reach
the parties' arguments concerning those rulings. We nonetheless view the following issue regarding the scope
of discovery as worthy of comment. When an employer's personnel records are sought in discovery, the
confidentiality of information that otherwise qualifies as discoverable may be protected through restrictions on the
use of that information. See Lyoch v. Anheuser-Busch Cos., 164 F.R.D. 62, 68-69 (E.D. Mo. 1995).
Such restrictions may be embodied in a mutual agreement between the parties or a protective order issued under
Section 18.15. See Lyoch, 164 F.R.D. at 68-69; 29 C.F.R. §18.15.
5 However, we do note that Respondent
questions the propriety of the ruling in the Board's March 31, 1998 decision, which rejected Respondent's
argument that this complaint was barred by a July 1995 severance agreement entered into by Khandelwal and
Respondent. We see no reason to reconsider that ruling.
6 Specifically, the ALJ denied
Khandelwal's motion to compel SCE to produce the following:
* Performance appraisals for "all Grades 7 and 8 engineers in the Electrical
Engineering Department of Nuclear Engineering Division for years 1993, 1994 and 1995."
* "All management investigations, inquiries, evaluations or documents related to Mr.
Khandelwal's complaint to Nuclear Safety Group at San Onofre Nuclear Generating Station, in June 1994
regarding the retaliation for raising the safety concerns."
* "Resumes of all Contract engineers who were working in the Electrical Engineering
Department of Nuclear Engineering Division from January 1995 to December 1996."
* "A list of other employees, similarly situated as Mr. Khandelwal (e.g. former
supervisors whose positions were eliminated and/or who were given below satisfactory Performance
Review Evaluations during the same time frame as Mr. Khandelwal (May 1993)[ ) ]."
7 The Seater decision refers to
Section 24.5(e)(1), which was the former designation for the identical provision now found at Section 24.6(e)(1).
63 Fed. Reg. 6614, 6619 (1998).