If jurisdiction, although once obtained, has been lost, administrative proceedings must be dismissed. However, if there are cumulative administrative and judicial remedies, an administrative proceeding need not be dismissed because a civil action has been filed in which much of the evidence before the agency might also be relevant.
In the absence of a statute to the contrary, a plaintiff in an administrative proceeding has the unqualified right to dismiss his or her complaint unless some plain legal prejudice will result to the defendant, other than the mere prospect of a second litigation upon the subject matter. However, dismissal of claims in an administrative proceeding for noncompliance with an order is a drastic remedy, and the authority for it must be clear.
To warrant dismissal of administrative proceedings for delay, a party generally must show, not only unreasonable or unconscionable delay by the government in initiating, conducting, or concluding proceedings but also that the party’s ability to defend against the allegations has been substantially prejudiced by the delay.
For instance, defendant, a nursing home, terminated the nurse aide’s employment after an internal investigation and reported two incidents of patient abuse to the Department. An on-site investigation was conducted and the Department determined that the allegations had been validated. The aide’s file was misplaced and she was not advised of the outcome of the investigation. A year later after the aide’s attorney requested assistance from the governor’s office, the Department issued its order that found that the aide had sexually abused two patients and directed that the incidents be entered in the registry. The aide appealed to the district court. The district court found that the lengthy delay by the Department violated the aide’s due process rights, and that one incident did not constitute sexual abuse. The aide contended that the delay was substantially prejudicial by a 29-month delay between the first incident and the hearing because the patient had died. The court held that the aide failed to show that she was substantially prejudiced by a delay because the patient died a few months after the incident and it was likely unlikely that a timely hearing could have been held before his death[i].
[i] Hickey v. North Dakota Dep’t of Health & Consol. Lab., 536 N.W.2d 370 (N.D. 1995)