Adkins v. U.S.

• Decision Date: 29 April 1987
• Docket Number: No. 86-1320,86-1320
• Citation: 816 F.2d 1580
• Parties: 107 Lab.Cas. P 34,941, 10 Fed.R.Serv.3d 714 Gary L. ADKINS, et al., Appellants, v. The UNITED STATES, Appellee. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1580

816 F.2d 1580

107 Lab.Cas. P 34,941, 10 Fed.R.Serv.3d 714

Gary L. ADKINS, et al., Appellants, v. The UNITED STATES, Appellee.

Appeal No. 86-1320.

United States Court of Appeals, Federal Circuit.

April 29, 1987.

Alan Banov, Washington, D.C., for appellants.

Robert A. Reutershan, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for appellee. With him on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director and Ronald A. Schechter.

Before NIES, BISSELL and ARCHER, Circuit Judges.

ARCHER, Circuit Judge.

Appellants appeal the partial judgment of the United States Claims Court in the consolidated cases of Adkins v. United States, Cl.Ct. No. 268-84C, Adams v. United States, Cl.Ct. No. 400-84C, and Allison v. United States, Cl.Ct. No. 316-85C, in which their complaints were dismissed. We affirm in part, vacate in part, and remand.

Background

These consolidated cases encompass over 1,100 individual claims of present and former federal employees of the Bureau of Prisons for overtime pay for time immediately prior to and following their workshifts alleged to be required to perform work-related duties such as roll call and checking in and out equipment required for At the initial stages of the litigation, the United States sought discovery to obtain information from each plaintiff regarding the specific factual basis for his or her claim which had not been included in the broad allegations of the single complaint filed in each case on behalf of a large group of plaintiffs. Interrogatories directed to the more than 1,000 plaintiffs in Adkins and Adams were served on their counsel on January 28, 1985. Plaintiffs' counsel obtained an enlargement of time through April 4, 1985 to respond to the interrogatories. On that date, responses from 331 plaintiffs were served on the United States and a further extension to May 6, 1985 was granted. On May 10, 1985, after a four-day additional extension, responses were served from 20 more plaintiffs. No further extension was sought at that time by plaintiffs' counsel. ¹ On May 28, 1985, the United States filed a motion to dismiss the Adkins and Adams plaintiffs who failed to make any response to the government's interrogatories. Also on May 28, 1985 the third of these consolidated cases, Allison, was filed. The United States answered on June 26, 1985, and on August 9, 1985 served identical interrogatories on counsel directed to the Allison plaintiffs' claims.

their job assignments. Class certification was denied.

On August 22, 1985, the Claims Court heard argument on the motion to dismiss the Adkins and Adams plaintiffs who failed to respond. In denying the motion, by order, the court established final deadline dates for responses to the interrogatories in all three cases: October 22, 1985 was set for Adkins and Adams and November 22, 1985 was set for Allison. The court made it clear to the plaintiffs' counsel that if these deadlines were not met, the court, upon renewal of the motion to dismiss by the United States, would dismiss the non-responding plaintiffs for failure to prosecute.

Shortly after each court-ordered deadline, the United States again moved to dismiss the non-responding plaintiffs. The Claims Court granted each motion and dismissed those plaintiffs who had failed to respond by the deadlines for failure to prosecute. A few late responses had been received, and in those cases the court ruled that any response postmarked by the deadline dates would be considered timely. Nineteen plaintiffs had submitted responses but they were postmarked after the deadline dates, and no declaration or affidavit was presented to explain the tardiness of the responses. ² These plaintiffs' cases were accordingly dismissed and eighteen of them are now appellants before this court. Included in this appeal are also nineteen additional appellants who apparently more recently submitted late responses to the interrogatories. These appellants were not made known to the Claims Court prior to the time it ruled on the motions to dismiss on January 15, 1986 or prior to its denial on April 2, 1986 of the motion for reconsideration.

OPINION

The Claims Court's dismissal of appellants' complaints is reviewable only to determine whether that court abused its discretion. National Hockey League v Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976). The decision below will not be disturbed unless upon a weighing of relevant factors we are left with "a 'definite and firm conviction' that the court below committed a clear error of judgment." Bandag, Inc. v. Al Bolser's Tire Stores, Inc., 750 F.2d 903, 917 (Fed.Cir.1984); Verdegaal Bros. v. Union Oil Co., 750 F.2d 947, 952 (Fed.Cir.1984) (quoting Playboy Enterprises, Inc. v. Baccarat Clothing Co., 692 F.2d 1272, 1275 (9th Cir.1982)). See also Milmark Services, Inc. v. United States, 731 F.2d 855, 860 (Fed.Cir.1984) (matters within the discretion of the trial judge are to be sustained unless manifestly erroneous). The question is not whether this court would as an original matter have dismissed these actions, it is whether the Claims Court abused its discretion in doing so. National Hockey League, 427 U.S. at 642, 96 S.Ct. at 2780.

Under Rule 37(d), RUSCC, if a party fails to serve answers to interrogatories "the court on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule." Rule 37(b)(2)(C), paralleling Fed.R.Civ.P. 37(b)(2)(C), which deals with sanctions for failure to comply with an order of the court, states that a permitted sanction for such failure is "[a]n order ... dismissing the action or proceeding or any part thereof...." ³

The sanction of dismissal is intended to be both a punishment for the offender and a deterrence to others. National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781. Ordinarily, it is applied in those cases where a party is explicitly ordered by the court to provide discovery but the party fails to respond in a proper or timely manner. See, e.g., id. at 642, 96 S.Ct. at 2780. (court patient in allowing ample time to comply with discovery orders); Van Nostrand v. University of Minnesota, 656 F.2d 315, 316 (8th Cir.1981) (repeated failure to make full and timely responses to discovery requests and failure to comply with three separate discovery orders despite explicit instructions from the district court warranted dismissal with prejudice); Al Barnett & Son, Inc. v. Outboard Marine Corp., 611 F.2d 32, 36 (3d Cir.1979) (repeated failure to answer interrogatories as directed and refusal to appear for depositions warranted dismissal with prejudice).

The Supreme Court has recognized that Rule 37 should not be construed to authorize dismissal when the dismissed party has established that the failure to comply was due to inability, and not to willfulness, bad faith or any fault of the party. National Hockey League, 427 U.S. at 640, 96 S.Ct. at 2779; Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1095, 2 L.Ed.2d 1255 (1958). Absent that showing by such party, ⁴ an exercise of the power in proper circumstances is necessary "to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts." Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734 (1962).

In this case, we find that the Claims Court did not abuse its discretion in dismissing with prejudice the complaints of the thirty-seven appellants. The particular interrogatories sought information basic to the question of whether each plaintiff could maintain his or her individual claim. Counsel in the Adkins and Adams cases sought and received three enlargements of time to provide the information prior to the first motion to dismiss. Even then the court did not grant the government's first motion to dismiss. Rather, by order, the court imposed a final deadline, giving the appellants an additional two-month enlargement of time. In total, appellants were permitted 267 days to respond to discovery in these cases and 105 days in the later Allison case. Moreover, at the hearing on the first motion to dismiss, the Claims Court, in establishing the final deadlines, gave specific notice to appellants' counsel that if the discovery requests were not complied with by the dates specified, the court would dismiss the non-responding parties. As stated in its orders of dismissal under review:

[T]he court by its order of August 22, 1985, gave the plaintiffs until October 22, 1985 [and November 22, 1985] to respond, or, upon renewal of the defendants' motion, be dismissed for failure to prosecute.

Even with the ample response time provided, a warning to their counsel and the court-ordered deadline, appellants ⁵ did not mail their responses to the interrogatories until after the deadline dates. Moreover, neither the appellants nor their counsel informed the court of any reasons why they were unable to respond timely. Given the nature of the interrogatories, the repeated failures of appellants to meet discovery time limits, the order of the court setting the final deadline dates, and the absence of an explanation for delay, there was substantial justification for the Claims Court's action. We cannot say that the court abused its discretion when, after a year, the dismissed parties had evidenced no interest in the litigation beyond joining in the filing of a complaint. Ahlberg v. Department of Health and Human...