BRB No. 02-0746
PASQUALE PONTORIERO
Claimant-Petitioner
v.
UNIVERSAL MARITIME
SERVICE CORPORATION
and
SIGNAL MUTUAL
INDEMNITY
ASSOCIATION
Employer/Carrier-
Respondent
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DATE ISSUED:
06/30/2003 ISSUED:
JUN 30, 2003
DECISION and
ORDER
Appeal of the Order of Dismissal and Order Denying Claimant's Motion for
Reconsideration of Paul H. Teitler, Administrative Law Judge, United
States Department of Labor.
Phillip J. Rooney (Israel, Adler, Ronca & Gucciardo), New York, New
York, for claimant.
Christopher J. Field (Field Womack & Kawczynski, LLC), South Amboy, New
Jersey, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Order of Dismissal and Order Denying Claimant's Motion
for Reconsideration (01-LHC-1125) of Administrative Law Judge Paul H. Teitler
rendered on a claim filed pursuant to the provisions of the Longshore and Harbor
Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq.
(the Act). We must affirm the administrative law judge's findings of fact and
conclusions of law if they are supported by substantial evidence, are rational, and
are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Claimant injured his left knee and back on October 12, 1993, during the course
of his employment as a checker. After receiving compensation and medical benefits
under the Act, claimant returned to work for employer in May 1996; however, on May
10, 1996, claimant slipped and fell at work re-injuring his left knee and back.
In a Decision and Order issued on March 6, 1999, the administrative law judge found
that claimant is not entitled to additional compensation for his initial October
1993 injury. For his injury of May 10, 1996, the administrative law judge awarded
claimant compensation for temporary total disability, 33 U.S.C. §908(b), from
May 10, 1996, to March 27, 1997, when he found claimant capable of returning to
work as a checker. Claimant also was awarded compensation for a 10 percent
impairment of the left knee. 33 U.S.C. §908(c)(2). Claimant appealed and
employer cross-appealed the administrative law judge's decision to the Board, which
affirmed in all respects. Pontoriero v. Universal Maritime Service Corp.,
BRB Nos. 99-0769/A (April 6, 2000) (unpub.).
On January 17, 2001, claimant filed for modification of the administrative law
judge's decision, 33 U.S.C. §922, alleging a mistake in fact in the earlier
decision and a change in condition, and a hearing was scheduled for June 25, 2001.
On March 7, 2001, employer propounded interrogatories to claimant. By letter dated
May 22, 2001, employer asserted that claimant had failed to answer its
interrogatories, and it requested that the administrative law judge order
claimant's cooperation. On June 6, 2001, claimant responded that he is proceeding
with responses to employer's interrogatories, and he requested a continuance. The
administrative law judge issued an Order that day compelling claimant to answer
employer's interrogatories by June 12, 2001, or the claim may be dismissed by
reason of abandonment. On July 5, 2001, the case was rescheduled for a hearing on
November 14, 2001. On August 9, 2001, employer requested that claimant produce MRI
films of claimant's lumbar spine and left knee, and the reports and MRI films of
claimant's cervical spine and both shoulders. Employer also requested the medical
notes of claimant's treating physician, Dr. Charko, claimant's income tax returns
from 1997 through 2000, and a copy of claimant's pension/retirement application.
On October 25, 2001, employer moved for a second order compelling claimant to
respond to its document request and a second continuance due to claimant's failure
to comply with discovery. On October 31, 2001, the administrative law judge issued
an Order for claimant to show cause within 15 days why the claim should not be
dismissed due to his failure to respond to employer's March 7 and August 9, 2001,
discovery requests. Claimant responded that answers to employer's interrogatories
had been forwarded to employer as well as all medical documents in claimant's
possession, but that he had been unable to obtain from the physicians all the MRI
films requested by employer. On November 29, 2001, the administrative law judge
scheduled the case for a calendar call on January 8, 2002.
The formal hearing was convened on January 8, 2002. At that time, employer
moved that the administrative law judge order claimant's compliance with its
requests for MRI film of claimant's left knee taken in February 2001 and of
claimant's right shoulder taken in April 2000, a copy of Dr. Charko's complete
medical records, claimant's tax returns for 1997 through 2000, and claimant's
pension/retirement application. Tr. at 6-7. The administrative law judge ordered
claimant to comply with these requests within 30 days by submitting the documents
to employer or by sending employer medical releases so it could obtain the medical
records. Tr. at 13-14, 17-18, 21-22, 25. On February 11, 2002, employer informed
the administrative law judge that claimant had not provided any documents, and it
moved that the administrative law judge, inter alia, dismiss claimant's
petition for modification. On February 13, 2002, claimant responded that he had
forwarded the medical releases, and that the tax information was forthcoming.
On June 24, 2002, the administrative law judge issued his Order of Dismissal,
stating that claimant had not complied with his June 12, 2001, Order Compelling
Discovery. Claimant moved for reconsideration, to which he attached a copy of his
tax return for 2001, and he stated his willingness to fulfill employer's discovery
requests. In his Order denying reconsideration, the administrative law judge
stated that claimant had over a year to meet the terms of his June 12, 2001, order,
and that only now was claimant responding to the order and to employer's discovery
requests. The administrative law judge stated that he gave claimant every
opportunity to fulfill employer's discovery requests, but that claimant's counsel
failed to demonstrate that claimant intended to pursue his claim. Pursuant to this
finding, and citing Section 18.39(b) of the Rules of Practice and Procedure before
the Office of Administrative Law Judges, 29 C.F.R. §18.39(b), and Rule 41(b)
of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 41(b), which provide for
the dismissal of abandoned claims, the administrative law judge determined that he
is within his authority to dismiss claimant's claim with prejudice.
Claimant appeals, contending that the administrative law judge erred in
dismissing his claim. Employer responds, urging affirmance.
We initially address the administrative law judge's Order of Dismissal,
wherein the administrative law judge found that claimant failed to comply with his
June 12, 2001, Order that claimant answer employer's interrogatories. The
administrative law judge reasoned that claimant's counsel had failed to provide
employer with tax records, medical records, diagnostic imaging studies, and medical
authorizations. As an initial matter, we note that claimant, in fact, did comply
with the June 12, 2001, Order that he answer employer's interrogatories. The
administrative law judge's rationale for dismissing the claim actually applies to
claimant's non-compliance with employer's subsequent discovery requests, as stated
in the October 2001 Order to show cause and the administrative law judge's order,
at the January 8, 2002, hearing that claimant fully comply with employer's August
9, 2001, discovery request, or provide employer with medical authorizations so that
it could obtain the requested medical records and studies. Tr. at 6-11, 13-14, 16-18, 22.
The Board recently addressed the authority of an administrative law judge to
dismiss a claim with prejudice for failure to comply with discovery orders. In
Goicochea v. Wards Cove Packing Co., 37 BRBS 4 (2003), the administrative
law judge, citing Rules 41(b) and 37(b)(2)(C) of the Federal Rules of Civil
Procedure, entered an order dismissing the claim based on claimant's failure to
comply with multiple orders that claimant sign a release allowing employer to
obtain claimant's entire file from the Immigration and Naturalization Service, and
on what he deemed to be claimant's complete recalcitrance with respect to the
discovery process, claimant's disregard of warnings about potential sanctions, and
claimant's failure to respond to employer's motion to dismiss. The Board reversed
the dismissal of the claim and held that the case must be remanded to the
administrative law judge for consideration under Section 27(b) of the Act, 33
U.S.C. §927(b). Specifically, since the conduct cited by the administrative
law judge involved the claimant's failure to obey a lawful order, the Board held
that claimant's refusal to provide the requested release to employer falls within
the scope of Section 27(b) of the Act.[1] As the Act contains a specific
provision governing the manner in which to sanction the failure to comply with a lawful discovery order,[2] the Board held in Goicochea that neither the general Rules of Practice and
Procedure for the Office of Administrative Law Judges, 29 C.F.R. Part 18, nor the Federal Rules of Civil
Procedure apply to permit the administrative law judge to dismiss the claim with prejudice. Goicochea,
37 BRBS at 6; see Metropolitan Stevedore Co. v. Brickner, 11 F.3d 887, 27 BRBS 132(CRT)
(9th Cir. 1993); 29 U.S.C. §18.1(a); see also 33 U.S.C. §923(a).
Pursuant to Goicochea, we therefore hold in the instant case that the administrative law judge erred
in dismissing claimant's claim based upon claimant's failure to respond to the administrative law judge's orders
that he comply with employer's discovery requests, and in not considering the applicability of Section 27(b) to
the facts before him. As claimant's failure to provide employer with his tax returns for 1997 through 2000, his
pension/retirement application, MRI film of claimant's left knee taken in February 2001, MRI film of claimant's
right shoulder taken in April 2000, and a complete copy of Dr. Charko's medical records, or, alternatively, to
execute and deliver an authorization releasing his medical records to employer, was in direct noncompliance with
the administrative law judge's lawful order,[3] it constitutes conduct which may be addressed
under the procedural mechanism of Section 27(b). Rather than dismissing claimant's claim for this reason, the
administrative law judge must follow the procedures provided for in Section 27(b) of the Act. Accordingly, we
vacate the administrative law judge's dismissal of claimant's claim based upon claimant's failure to comply with
the administrative law judge's discovery orders, and we remand the case to the administrative law judge to
consider whether the certification of the facts to the district court pursuant to Section 27(b) of the Act is
appropriate in this case.
We next address the administrative law judge's Order Denying Reconsideration, in which he additionally
dismissed claimant's claim based on claimant's abandonment of, or failure to prosecute, his claim. The
administrative law judge's authority to dismiss a claim with prejudice for these reasons, pursuant to 29 C.F.R.
§18.39(b),[4] stems from 29 C.F.R. §18.29(a), which affords the administrative
law judge all necessary powers to conduct fair and impartial hearings and to take any appropriate action authorized
by the Federal Rules of Civil Procedure. Rule 41(b), Fed. R. Civ. P. 41(b), provides for the involuntary dismissal
of a claim for, inter alia, failure to comply with an order of the court or to prosecute the claim. The courts
have interpreted this rule as permitting a case's dismissal only where there is a clear record of delay or
contumacious conduct, or when less drastic sanctions have proved unsuccessful. Penny Theatre Corp. v. Plitt
Theatres, Inc., 812 F.2d 337 (7th Cir. 1987); Donnelly v. Johns Manville Sales Corp., 677 F.2d 339
(3d Cir. 1982); Twigg v. Maryland Shipbuilding & Dry Dock Co., 23 BRBS 118 (1989). In
Twigg, citing Davis v. Williams, 588 F.2d 69 (4th Cir. 1978), the Board listed several factors to
be considered by the administrative law judge in considering whether to dismiss a claim. These factors included:
1) the degree of personal responsibility on the part of plaintiff; 2) the amount of prejudice to defendant caused by
the delay; 3) the presence/absence of drawn out history of deliberately proceeding in a dilatory fashion; and 4)
the effectiveness of sanctions less drastic than dismissal. Twigg, 23 BRBS at 121. The United States
Court of Appeals for the Third Circuit, within whose jurisdiction this case arises, had found the Davis
factors relevant, although not necessarily all-encompassing, to the determination of the appropriateness of a
dismissal pursuant to Rule 41(b). Donnelly, 677 F.2d at 342-343; see also Madesky v. Campbell,
705 F.2d 703 (3d Cir. 1983).
In this case, the administrative law judge on reconsideration stated that claimant's counsel did not further
his client's claim for modification in an expeditious manner by failing to respond to the administrative law judge's
June 12, 2001, Order and to employer's discovery requests. He noted employer's letter of February 11, 2002,
stating that none of the requested medical releases or tax or medical records had been received, and that counsel's
attempt to comply on reconsideration by filing claimant's 2001 tax return was lacking and overdue.[5] He therefore found that claimant did not intend to pursue his claim, and the administrative law judge
declined to overturn his prior Order of Dismissal.
We vacate the administrative law judge's finding that claimant's claim should be dismissed for failure to
prosecute, pursuant to 29 C.F.R. §18.39(b) and Rule 41(b). As we have held, claimant's counsel's dilatory
response to the administrative law judge's discovery orders cannot be sanctioned by dismissing the claim. 33
U.S.C. §927(b); Goicochea, 37 BRBS at 7-8. Moreover, the administrative law judge's dismissal
of the claim for failure to prosecute cannot be affirmed, as the administrative law judge did not address relevant
factors before imposing such a drastic sanction. The administrative law judge did not address to what extent
claimant was personally responsible for the delay in forwarding to employer the requested materials. There is no
evidence that employer has been prejudiced by the delay engendered by claimant's failure to timely comply with
employer's discovery requests. Pursuant to the administrative law judge's initial decision, employer has not paid
claimant benefits for his work injuries since the administrative law judge found claimant entitled to compensation
for a 10 percent impairment of his right leg. Thus, there is no evidence that employer has been prejudiced by delay
in the prosecution of claimant's Section 22 claim. Finally, the administrative law judge did not consider the
applicability of any lesser sanctions for claimant's failure to fully comply with employer's discovery requests and
the administrative law judge's orders. Therefore, the administrative law judge's dismissal of the claim on
reconsideration based on failure to prosecute is vacated, and the case is remanded to the administrative law judge
for further consideration of factors relevant to the determination of whether claimant's claim should be dismissed
for lack of prosecution. See French v. California Stevedore & Ballast, 27 BRBS 1 (1993); Bogdis v.
Marine Terminals Corp., 23 BRBS 136 (1989); Twigg, 23 BRBS 118.
Accordingly, the administrative law judge's Order of Dismissal and Order Denying Claimant's Motion for
Reconsideration are vacated, and the case is remanded for further proceedings in accordance with this opinion.
SO ORDERED.
_______________________________
NANCY S. DOLDER, Chief
Administrative Appeals Judge
_______________________________
ROY P. SMITH
Administrative Appeals Judge
_______________________________
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1)Section 27(b) of the Act, provides:
If any person in proceedings before a deputy commissioner or Board disobeys or resists any
lawful order or process, . . . or neglects to produce, after having been ordered to do so, any
pertinent book, paper or document, . . . the deputy commissioner or Board shall certify
the facts to the district court having jurisdiction in the place in which he is sitting (or to the
United States District Court for the District of Columbia if he is sitting in such District) which shall
thereupon in a summary manner hear the evidence as to the acts complained of, and, if the evidence
so warrants, punish the person in the same manner and to the same extent as for a contempt
committed before the court, or commit such person upon the same conditions as if doing of the
forbidden act had occurred with reference to the process of or in the presence of the court.
33 U.S.C. §927(b) (emphasis added). In 1972, the Act was amended to add Section 19(d), which provides
for the transfer of adjudicative functions to the Office of Administrative Law Judges. 33 U.S.C. §919(d).
Thus, since 1972, administrative law judges, rather than deputy commissioners (now referred to as district
directors), conduct formal hearings, and hold the powers and duties granted deputy commissioners under Section
27 of the Act. See Percoats v. Marine Terminals Corp., 15 BRBS 151, 153-154 (1982).
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2)Under Section 27(b) the district court may punish as contempt of court any disobedience
or resistance to a lawful order or process issued in the course of administrative proceedings under the Act. See
A-Z Int'l v. Phillips, 179 F.3d 1187, 33 BRBS 59(CRT) (9th Cir. 1999), citing Stevedoring Services of
America v. Eggert, 953 F.2d 552, 25 BRBS 92(CRT) (9th Cir. 1992), cert. denied, 505 U.S. 1230
(1992).
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3)Claimant does not challenge the "lawfulness" of the administrative law judge's orders
that he comply with employer's discovery requests.
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4)Section 18.39(b), states, in part, that "A request for hearing may be dismissed upon its
abandonment or settlement by the party or parties who filed it." 29 C.F.R. §18.39(b).
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5)In addition, claimant supplied the medical releases on February 13, 2002.
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NOTE: This is an UNPUBLISHED LHCA Document.
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