Opinion
Civ. No. 98-2425, Section "R"(5).
February 28, 2000.
ORDER AND REASONS
Before the Court is the motion of defendants, Oakmont Laboratories, L.L.C., Fred Kulow and Health From the Sun Products, Inc., to file a supplemental and amending answer, and the nearly identical motions to stay proceedings of those defendants and of defendants Oakmont Investment Company, Inc., Health From the Sun, Inc., Commercial Union Insurance Company and American Employers' Insurance Company. For the following reasons, defendants' motion to file their amended answer is granted in part and denied in part, and defendants' motions to stay are granted.
I. Background
Plaintiff was a United States Coast Guard-licensed vessel engineer. Before taking a Coast Guard drug test, he allegedly ingested "Spectrum Essentials" and "Hemp Liquid Gold," products manufactured and distributed by certain defendants. Plaintiff claims that he believed that the products were healthful and free of any ingredients that produce any of the risks associated with marijuana use. Subsequently, plaintiff tested positive for marijuana/THC. As a result, the Coast Guard sought to have his license revoked. After a hearing, a Coast Guard Administrative Law Judge ("ALJ") ordered plaintiff's license revoked on February 4, 1999. The decision of the ALJ is presently on appeal.
The "Hemp Liquid Gold" literature states that the product provides all your essential fatty acid needs and is a "nutritional wonder" which, while being a member of the Cannibus Sativa family, does not contain THC, the active ingredient in marijuana.
Plaintiff alleges that his test was a "false positive" and the result of his consumption of defendants' products. On August 17, 1998, plaintiff sued defendants in this Court, seeking damages for emotional distress, as well as for a significant loss of earnings, earning capacity, pension benefits, medical insurance benefits and loss of other job related benefits.
Certain defendants now seek to file a supplemental and amending answer, in order to add the affirmative defenses of res judicata, collateral estoppel and failure to mitigate damages. In addition, these and other defendants have filed nearly identical motions to stay the proceedings in this Court, pending the outcome of the administrative appeal. Specifically, they claim that the issue of lost future earnings is too speculative to go to the jury and that the ALJ's decision, if affirmed, will have preclusive effect in this litigation.
II. Discussion
A. Supplemental and Amending Answer
In their motion to file supplemental and amending answer, defendants seek to add as affirmative defenses res judicata, collateral estoppel and failure to mitigate damages. Plaintiff only opposes the addition of res judicata and collateral estoppel, claiming that Louisiana law does not recognize collateral estoppel as a valid defense. Under Federal Rule of Civil Procedure 15(a), "leave [to amend] shall be freely given when justice so requires." FED. R. CIV. P. 15(a). "Unless there is a substantial reason to deny leave to amend, the discretion of the district court is not broad enough to permit denial." Farias v. Bexar County Bd. of Trustees for Mental Health Retardation Services, 925 F.2d 866, 874 (5th Cir. 1991). In deciding whether to allow a party to amend pleadings, courts may consider factors such as undue delay, dilatory motive, bad faith, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party and futility of amendment. See Matter of Southmark Corp., 88 F.3d 311, 315 (5th Cir. 1996), citing Forman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962); Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993). Plaintiff's only argument in opposition to defendants' motion to amend is that res judicata and collateral estoppel are invalid defenses; thus, this Court must determine whether allowing defendants to amend their answer would be futile.
Plaintiff argues that because this is a diversity case, Louisiana law applies to the questions of res judicata and collateral estoppel. Plaintiff is correct that under Louisiana law, both claim and issue preclusion require that the parties in both actions be identical, a factor not present in this case. See LA. REV. STAT. § 13:4231 (West 2000). Nevertheless, the Fifth Circuit has held that federal courts must apply federal law to the question of the preclusive effect of a prior federal court proceeding, regardless of the basis of jurisdiction in either the prior or the present action. See RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1290, 1290 n. 11 (5th Cir 1995), citing Avondale Shipyards, Inc. v. Insured Lloyd's, 786 F.2d 1265, 1269 n. 4 (5th Cir. 1986). Although in this case, the prior proceeding was not a federal court proceeding, courts have recognized the preclusive effect of the final judgment of a federal administrative proceeding, provided that the parties had a fair opportunity to litigate in the prior proceeding and that certain other requirements are met. See Grace v. Keystone Shipping Co., 805 F. Supp. 436 (E.D. Tex. 1992) (granting preclusive effect to Coast Guard ALJ's finding in administrative hearing in later maritime action), citing Astoria Fed. Sav. Loan Ass'n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 2169 (1991); United States v. Utah Constr. Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560 (1966). See also Castillo v. Railroad Retirement Bd., 725 F.2d 1012, 1014 (5th Cir. 1984) (prior administrative determination that employee was not disabled precluded relitigation in subsequent proceeding); Painters District Council No. 38 v. Edgewood Contracting Co., 416 F.2d 1081, 1083-84 (5th Cir. 1969) (N.L.R.B. finding that union had engaged in an unfair labor practice was entitled to preclusive effect in a subsequent lawsuit)
In Grace, the district court held that an ALJ's determination that a seaman possessed marijuana could not be relitigated in a separate proceeding, because it was "judicial" and satisfied the elements of collateral estoppel, namely, that (1) the issues in both proceedings are identical; (2) the issue was actually litigated; and (3) the determination of the issue in the prior litigation was crucial to the judgment in the earlier action. Id. at 441-42; see also Matter of Lewisville Properties, Inc., 849 F.2d 946, 949 (5th Cir. 1988) (listing requirements for federal issue preclusion). Plaintiff does not dispute that the administrative hearing was adjudicative in nature. Here, as in Grace, the hearing before the ALJ afforded plaintiff the near equivalent to a civil trial. See id. at 439. He was represented by counsel, given the opportunity to subpoena, examine and cross-examine witnesses, to call an expert witness and to testify on his own behalf. See id. At the conclusion of the hearing, the ALJ issued written findings of fact and conclusions of law. The ALJ found by substantial evidence that Dresser's use of marijuana caused his positive test result and consequently revoked Dresser's boating license. Thereafter, Dresser was given the opportunity to appeal the ALJ's decision, and that appeal is presently pending. This Court therefore finds that the administrative hearing was judicial.
Nevertheless, plaintiff asserts that this Court must not give the ALJ's finding preclusive effect because the issues in the two proceedings are not identical, the issue in question was not crucial to the ALJ's decision to revoke plaintiff's license, and plaintiff did not have an opportunity to fully and fairly litigate his claim.
1. Identical Issues
Plaintiff argues that the issues in the two proceedings are not identical because, in the administrative hearing, he was subjected to a more stringent legal standard. The Fifth Circuit has recognized that for issues to be identical, "[n]ot only the facts, but also the legal standard used to assess them, must be identical." Brister v. A.W.I., Inc., 946 F.2d 350, 354 n. 1 (5th Cir. 1991), emphasis added. Thus, even if the facts underlying the issues in both proceedings are the same, the issues may not be identical if the second action involves the application of a different legal standard. See RecoverEdge, 44 F.3d at 1291, citing 18 CHARLES ALAN WRIGHT, ARTHUR R. MILLER EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4417, 165, footnote omitted.
Plaintiff asserts that in his administrative proceeding before the Coast Guard ALJ, federal law established a rebuttable presumption that Dresser was a user of dangerous drugs. Indeed, 46 C.F.R. § 16.201(b) provides: "If any individual fails a chemical test for dangerous drugs under this part, the individual will be presumed to be a user of a dangerous drugs." He argues that this presumption in the administrative proceeding would prejudice him if this Court gives preclusive effect to the finding that he used marijuana in plaintiff's civil case. Although courts may deny collateral estoppel effect due to differences in burdens of proof, when, "for example, the victor in the first case has a greater burden in the second[,]" this is not such a case. Bath Iron Works Corp. v. Director, Office of Workers' Comp. Programs, U.S. Dept. of Labor, 125 F.3d 18, 21 (1st Cir. 1997). Plaintiff could have overcome the presumption in the administrative hearing that he was a user of dangerous drugs by "reliable, probative and substantial evidence." 46 C.F.R. § 5.63 (reserved 1999); see Decision and Order of Judge Boggs, Conclusions of Law, 13. Section 5.63 defines this as "evidence of such probative value as a reasonable, prudent and responsible person is accustomed to rely upon when making decisions in important matters." 46 C.F.R. § 5.63. The Fifth Circuit has likewise defined substantial evidence as "more than a scintilla, less than a preponderance, and such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Deters v. Secretary of Health, Educ. Welfare, 789 F.2d 1181, 1185 (5th Cir. 1986), emphasis added, citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). In this Court, plaintiff will attempt to establish that defendants' product caused him to test false positive for marijuana/THC. He must prove by a preponderance of the evidence that his positive test result did not result from the use of marijuana. Because substantial evidence is a less stringent standard than a preponderance of the evidence, plaintiff will not suffer any prejudice if the prior finding is given preclusive effect. See Bath Iron, 125 F.3d at 21-22 (giving preclusive effect to finding in earlier hearing that required proof by preponderance of the evidence because prevailing party had lighter burden of substantial evidence in later proceeding). The court in Bath Iron found that the federal presumption that an employee's claim came within the provisions of the chapter of the Longshore and Harbor Workers Compensation Act at issue "merely requires an employer to provide "substantial evidence' that the accident did not cause the harm, and then the presumption vanishes." Id. Likewise, in this case, the presumption against plaintiff merely required him to present substantial evidence that he did not use marijuana. The ALJ specifically found that plaintiff did not provide reliable, probative and substantial evidence to support his defense that "he used hemp seed oil" instead of marijuana. ( See Defs.' Mot. Stay Ex. A at 41.) It follows that because he was not able to provide substantial evidence that he did not use marijuana, he will not be able to prevail by a preponderance of the evidence in his civil trial. Thus, the Court finds that the issues in both proceedings are identical.
2. Critical and Necessary to Judgment
Plaintiff submits that whether he ingested hemp seed oil was not a critical and necessary part of the resolution of the administrative hearing. This claim is meritless. First, plaintiff's defense in the administrative proceeding was that he ingested hemp seed oil, not marijuana. Thus, central to both proceedings (and the real issue of this motion) is whether plaintiff used marijuana. Plaintiff's marijuana use was clearly both critical and necessary to the administrative proceeding, because but for the ALJ's finding that plaintiff used marijuana, the ALJ would not have revoked his license. In addition, whether plaintiff ingested hemp seed oil had to be resolved before he could be found to have used marijuana. The ALJ did not accept the argument of the medical officer that the only two acceptable excuses for a positive test result were that (1) plaintiff had a legitimate prescription for Marinol; or (2) plaintiff was among the small group of persons permitted to smoke marijuana for medical reasons. Rather, he cited "The Medical Review Officer Guide," issued by the United States Department of Transportation, Office of the Secretary, which provides:
(E) Review Medical History and Other Biomedical Factors
There are four principal legitimate explanations for a positive test result:
1. Legally prescribed or dispensed medication
2. Ingested substances that produce the same metabolites as illegal substances (e.g. poppy seeds and opiates)
3. Errors in the chain of custody
4. Errors in the laboratory technical analysis
(Defs.' Mot. Stay Ex. A at 43, emphasis added by ALJ.) The ALJ considered these factors and found that plaintiff had not established his defense by reliable, probative and substantial evidence.
3. Fully and Fairly Litigated
Plaintiff's last argument is that he did not have an opportunity to fully and fairly litigate whether he used marijuana in the administrative proceeding. The Fifth Circuit has held that in determining whether to give preclusive effect to a prior proceeding, in addition to the requirements enumerated above, the court must decide (1) whether the issue was fully and vigorously litigated in the prior action; (2) that no special circumstance would make it unfair to apply the doctrine; and (3) whether a new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two proceedings. See Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 391, 391 n. 3 (5th Cir. 1998), citing Copeland v. Merrill Lynch Co., 47 F.3d 1415, 1422-23 (5th Cir. 1995). The ALJ held a hearing in which the government introduced the telephonic testimony of twelve witnesses, including two experts, and twenty-three exhibits, and plaintiff, represented by counsel, called three expert witnesses, testified on his own behalf, and introduced nineteen exhibits. ( See Defs.' Mot. Stay Ex. A at 2-10.) After the parties presented their evidence, the ALJ took the matter under advisement and issued written findings of fact and conclusions of law.
Plaintiff offers five reasons why the ALJ's determination that he used marijuana was unfair. They are that (1) the ALJ had ex parte communications with his son prior to rendering his decision; (2) the parties did not intend for collateral estoppel to apply to subsequent litigation; (3) plaintiff was not permitted to cross-examine live witnesses and was denied the right to fully cross-examine witnesses; (4) the ALJ formed adverse inferences against plaintiff because (a) he hired an attorney; and (b) he did not submit findings of fact and conclusions of law; and (5) the time line upon which the ALJ relied in rejecting plaintiff's defense was flawed. The Court will address each of these arguments in turn.
(a) Ex Parte Communications
Plaintiff asserts that the administrative hearing was unfair because the ALJ and his son, Charles Boggs, who represents one of the defendants in the civil case, had ex parte discussions about the proceedings. Charles Boggs did not represent a party to the proceedings before ALJ Boggs, and plaintiff does not claim that Charles Boggs relationship with the ALJ per se required the ALJ's recusal. Rather, plaintiff challenges communications between Charles Boggs' and his father, which plaintiff characterizes as ex parte.
The ALJ and his son stated that they had two brief conversations about this case. ( See Defs.' Mot. Stay Ex. C at 6, Deposition of Charles Boggs; Ex. D at 2, Letter of ALJ to Chief ALJ.) The first conversation occurred over dinner, approximately one month after plaintiff filed his civil suit in this Court, over two months after the completion of the administrative hearing, but before the ALJ issued his opinion. ( See id. Ex. D at 2.) ALJ Boggs stated that during the conversation, his son informed him that he was representing an insurance company that insured a client that had been sued in a civil case involving hemp seed oil, and that J. Mac Morgan was the plaintiff's attorney in that case. ( See id.) The ALJ stated: "I, of course, was taken by complete surprise. I did not have any further discussion with him concerning the matter and I do not know which company is being sued." ( Id. at 2-3.) The ALJ acknowledged that it was possible that the insurance company being sued was one of the companies whose products Dresser claimed he ingested in the Coast Guard proceeding. Charles Boggs testified in his deposition as follows: "[W]e agreed at the dinner table that we would have no further discussion about this case, and we had no further discussion about the case because . . . we both perceived that there may possibly be a conflict." ( Id. Ex. C at 6.) After the ALJ learned of his son's representation, he wrote a letter to the Chief ALJ pursuant to federal regulations (5 C.F.R. § 2635 et seq.), in order to determine whether a reasonable person would question his impartiality in the matter, and whether he should issue his decision and order, which was "virtually complete except for [his] signature." ( Id. at 4.) The second conversation occurred about six to eight weeks before the original civil trial date. In this conversation, the ALJ informed his son that he had written a letter to the Chief ALJ, and Charles Boggs requested a copy of the letter. ( See id. Ex. C at 10-11)
In response to ALJ Boggs' letter, the Chief ALJ issued an opinion that "ALJ Boggs is not conflicted from rendering a final opinion in the Dresser case." (Pl.'s Mot. Opp'n. Ex. G.) The Chief ALJ found that ALJ's Boggs' son did not represent a party to the case before him, and the record did not show how Charles Boggs could financially benefit from the ALJ's decision. The Chief ALJ noted that the only "known common connection" between the cases was Mr. Morgan, Dresser's attorney in both cases. The Chief ALJ indicated that while the hemp seed oil companies whose products Dresser claimed he used in the administrative proceeding could be the same as the one insured by the client of Charles Boggs, that was not known. He concluded that "the potentiality is too attenuated to constitute a conflict. Consequently there is no ethical basis for requiring ALJ Boggs' recusal or excusal." ( Id.)
The record reveals that when ALJ Boggs realized there might be a conflict, he and his son immediately ended the conversation, and ALJ Boggs promptly notified the Chief ALJ of the situation in order to determine whether and how to proceed. The Coast Guard rules did not require the automatic recusal of ALJ Boggs, and he followed Coast Guard procedures for determining whether his impartiality might reasonably be questioned. See 5 C.F.R. § 2635 et seq. This Court does not sit as a reviewing court over the administrative proceeding. Rather, its job is to determine whether there is a specific circumstance rendering it unfair to give the ALJ's decision preclusive effect. While plaintiff points to a number of things that occurred during the administrative hearing to support his argument that ALJ Boggs was biased against him, the entire proceeding took place before the ALJ learned of his son's representation of the insurer of a hemp seed oil company. This Court finds no evidence that the conversations at issue biased the ALJ, or that the administrative proceeding was unfair.
(b) Parties' Intention Regarding Application of Collateral Estoppel to Subsequent Litigation
Plaintiff next argues that this Court should decline to give the finding at issue preclusive effect because the parties did not intend it to have preclusive effect. Plaintiff's entire argument stems from a sentence in the Chief ALJ'S opinion regarding ALJ Boggs' ethical concerns: "No decision by ALJ Boggs in the Dresser case could have any impact, direct or indirect, on any separate litigation impacting upon the insurance company represented by the younger Boggs." This statement does not mean that the government intended that ALJ Boggs' decision would have no preclusive effect on subsequent litigation. Rather, it indicates that, in the context of the ethical question raised, and considering the information he had available at the time he issued his opinion, the Chief ALJ did not foresee that ALJ Boggs' decision would affect the civil litigation. Plaintiff relies on Gear v. City of Des Moines, 514 F. Supp. 1218, 1221 (S.D. Iowa 1981), for the proposition that courts must consider whether the parties intended or expected collateral estoppel to apply to factual issues determined in administrative proceedings. A thorough reading of Gear, however, reveals that unforeseeability, if it exists, does not always preclude the application of collateral estoppel. The court in Gear observed:
A court should not accept a party's claim of unforeseeabilitv as determinative. Rather, it should consider whether the civil action addresses conduct within the zone of agency concern as manifested in the agency enabling statute, procedures, and interpretive case law. If the conduct is within that zone and the issue was actually litigated and essential to the prior administrative judgment, a civil litigant should not prevail if it contends that the issues currently disputed were reasonably unforeseeable at the time of the earlier administrative decision.Id. at 1222, quoting Note, The Collateral Estoppel Effect of Administrative Agency Actions in Federal Civil Litigation, 46 GEO. WASH. L. REV. 65, 84 (1976). Thus, plaintiff's contention that the government did not intend ALJ Boggs' decision to have preclusive effect, without more, is unavailing. Here, plaintiff does not dispute that the civil action addresses conduct within the zone of the Coast Guard's concern, or that the issue of his marijuana use was actually litigated. Further, this Court has already determined that this finding was essential to the ALJ'S decision to revoke plaintiff's license. A cursory review of federal case law should have informed plaintiff that determinations by a Coast Guard ALJ are given preclusive effect in subsequent federal litigation. See Grace, supra. Moreover, the adversarial structure of the ALJ proceeding should have encouraged plaintiff to diligently defend his position. See Gear, 514 F. Supp. at 1222, citing Bowen v. United States, 570 F.2d 1311, 1322-23 (7th Cir. 1978)
In sum, given the adversarial nature of the proceedings and the case law concerning the preclusive effect of administrative proceedings, plaintiff should have expected that the ALJ'S factual determinations, if affirmed on appeal, would be given preclusive effect in later proceedings. Because the binding effect of the ALJ's decision was foreseeable, plaintiff's argument does not preclude the application of collateral estoppel.
(C) Cross-Examination of Witnesses
Plaintiff submits that the administrative proceeding was unfair because the ALJ allowed witnesses to testify via telephone, and because plaintiff was denied effective cross-examination of those witnesses. In support of his first contention, plaintiff relies on a "one-liner" quoted from a procedural treatise in Griffen v. Big Spring Indep. School Dist., 706 F.2d 645, 655 (5th Cir. 1983): "An administrative decision based on a written record, without opportunity for examination or cross-examination of live witnesses, for example, is not likely to support preclusion in a subsequent judicial action." 706 F.2d at 655, quoting 18 CHARLES ALAN WRIGHT, ARTHUR R. MILLER EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4475, at 766 (1981). First, the Coast Guard ALJ's decision was not based on a written record; "live" witnesses testified via telephone, and the parties examined and cross-examined these witnesses. Second, Griffen is distinguishable from this case in several respects.
In Griffen, the plaintiff did not challenge the findings of the hearing officer in the initial administrative proceeding; rather, he challenged the decision of the Texas State Board of Education to reverse the hearing officer's credibility determinations without the benefit of live testimony. 706 F.2d at 654-55. Griffen determined that it had good reason to doubt the quality, extensiveness and fairness of the procedures followed in the appeal, and ultimately declined to apply collateral estoppel to the Board's findings. See id. at 654, 657. In reaching this decision, the Fifth Circuit stated: "All we can tell from the record is the bottom line that the State Board clairvoyantly chose to believe the witnesses that the hearing examiner chose to disbelieve." Id. at 655-56. The Griffen court's decision not to give the Board's findings preclusive effect was based on the Board's unwarranted reversal of credibility determinations by the hearing officer when the Board did not have the benefit of hearing the testimony in the hearing; thus, plaintiff's reliance on Griffen is misplaced.
The court in Griffen also based its decision on the fact that the Board had an ex parte communication with Big Spring, in which it asked that party to prepare findings of fact, that it failed to give Griffen any opportunity to respond to those proposed findings, and that the Board issued its decision reversing the hearing officer only three days after receiving Big Spring's findings, suggesting that its decision "was not actually the product of the collegial decisionmaking the Board is supposed to provide." Id. at 656.
Plaintiff also asserts that the ALJ could have allowed witnesses to testify by telephone only upon the government's motion, and that the ALJ's refusal to sustain plaintiff's objection to this procedure violated the agency's own rules and regulations. In overruling plaintiff's objection, the ALJ quoted a ruling in an appellate administrative decision, in which the Commandant held: "it is established by regulation and case law that the use of telephonic testimony is acceptable in these proceedings." ( See Defs.' Mot. Stay Ex. A at 4.) The ALJ thus had authority to proceed by telephone and the use of telephonic testimony did not deny plaintiff the right to cross-examine live witnesses.
Plaintiff also maintains that the ALJ repeatedly prevented him from fully cross-examining the government's witnesses, and that this violated the Coast Guard's own regulations and plaintiff's due process right to a fair hearing. A review of the record indicates that the ALJ allowed plaintiff's counsel to cross-examine witnesses. Although it is true that in several instances, ALJ Boggs sustained the government's objections to plaintiff's cross-examination, or instructed witnesses not to answer certain questions, nothing in the record indicates that these rulings were so procedurally flawed that they violated federal regulations or denied plaintiff's due process rights. Thus, plaintiff's contention that he was denied effective cross-examination will not preclude the application of collateral estoppel.
(d) Adverse Inferences and Time Line
Last, plaintiff attacks the fairness of his administrative hearing by disputing the ALJ's particular findings and "inferences." He first contends that the ALJ drew improper adverse inferences against him in violation of 46 C.F.R. § 5.519 (a)(1) and § 5.561, because he hired an attorney and chose not to submit proposed findings of fact and conclusions of law. Plaintiff claims that ALJ Boggs' reliance on those adverse inferences "so taints [his] decision that it cannot be used as the basis for the application of collateral estoppel in this case." (Pl.'s Mot. Opp'n. at 19, 20.) In addition, plaintiff asserts that the time line on which the ALJ relied is so flawed that it precludes the application of collateral estoppel. The main thrust of this argument is that the ALJ did not diligently listen to the evidence presented.
As stated above, redetermination of issues in the administrative hearing is warranted if there is reason to doubt the quality, extensiveness, or fairness of the procedures followed in the prior litigation. See Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481, 102 S.Ct. 1883, 1897 (1982), quoting Montana v. United States, 440 U.S. 147, 164, n. 11, 99 S.Ct. 970, 979, n. 11. (1979); see also Griffen, 706 F.2d at 654. It is not the province of this Court to relitigate the issue defendants are seeking to collaterally estop. Plaintiff's proper forum for disputing "adverse inferences" and individual findings of fact by the ALJ is the review board, where his case is presently on appeal. In any case, it appears that the ALJ was "conscientious and thorough in reaching his conclusions and findings." Griffen, 706 F.2d at 654. He considered Dresser's defense that he ingested hemp seed oil and did not accept the Medical Review Officer's suggestion that this could not be a valid defense. He allowed Dresser to call three expert witnesses to testify about the possible effects of ingesting hemp seed oil, to introduce nineteen exhibits and to testify on his own behalf. That the ALJ simply did not believe Dresser's alternative explanation for his positive test result does not indicate that the procedures the ALJ employed in the hearing were unfair. ( See id. at 46 (concluding that Dresser had failed to produce any evidence to corroborate his use of hemp seed oil, his health reasons for doing so and the dates of his usage.))
After reviewing the parties' briefs, the administrative hearing, the ALJ's findings of fact and conclusions of law and the applicable case and regulatory law, this Court determines that plaintiff was afforded a full and fair opportunity to litigate his claim ( i.e. that he did not use marijuana). Thus, if the decision of the ALJ is affirmed, defendants may collaterally estop plaintiff from relitigating that issue in Dresser's civil case.
As to defendants' attempt to assert res judicata, or federal claim preclusion, federal law requires that in order for claim preclusion to apply in a subsequent proceeding, the parties must be the same in both proceedings. See Bradley v. Armstrong Rubber Co., 130 F.3d 168, 179 (5th Cir. 1997). Because defendants were not parties to the administrative hearing, they cannot assert claim preclusion and amending their answer to add this affirmative defense would be futile. Accordingly, defendants' motion to file a supplemental and amending answer is granted as to collateral estoppel and failure to mitigate damages, and denied as to res judicata.
B. Court's Power to Stay Proceedings
This Court has the inherent power to stay any matter pending before it in the interest of justice and "economy of time and effort for itself, for counsel and for litigants." Laitram Machinery, Inc. v. Carnitech A/S, 908 F. Supp. 384, 387 (E.D. La. 1995), quoting Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 166 (1936). In this case, the interests of justice, economy and time warrant a stay. Plaintiff will be collaterally estopped from relitigating whether he used marijuana if the decision of the ALJ is affirmed. If this occurs, he will not be able to pursue his theory of damages, and defendants will move to dismiss this case. Therefore, allowing this case to continue before the outcome of the appeal could result in a tremendous waste of time and resources, and could severely prejudice defendants. Therefore, defendants' motions to stay these proceedings pending the outcome of the administrative appeal are granted. In light of the Court's ruling, it is unnecessary to consider the defendants' argument regarding speculative damages.
III. Conclusion
For the foregoing reasons, defendants' motion to file a supplemental and amending answer is granted in part and denied in part and defendants' motions to stay are granted.
New Orleans, Louisiana, this 28th day of February, 2000.