                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD

     STANLEY CRAIG BRASCH,                           DOCKET NUMBERS
                  Appellant,                         CH-4324-15-0020-I-1
                                                     CH-3443-14-0793-I-1
                  v.

     DEPARTMENT OF
       TRANSPORTATION,                               DATE: April 22, 2015
                 Agency.

             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Stanley Craig Brasch, St. Louis, Missouri, pro se.

           Humberto Ruiz, Esquire, and Parisa Naraghi-Arani, Esquire, Washington,
             D.C., for the agency.

                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member

                                       FINAL ORDER

¶1        The appellant has filed petitions for review of two initial decisions, both of
     which dismissed his separately filed Uniformed Services Employment and
     Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
     (USERRA) appeals for lack of jurisdiction. Generally, we grant petitions such as

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                               2

     this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or
     regulation or the erroneous application of the law to the facts of the case; the
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petitions for review and AFFIRM
     the initial decisions, which are now the Board’s final decisions in each appeal.
     5 C.F.R. § 1201.113(b).
¶2        As a preliminary matter, we note that joinder of two or more appeals filed
     by the same appellant is appropriate where doing so would expedite processing of
     the cases and not adversely affect the interests of the parties. Tarr v. Department
     of Veterans Affairs, 115 M.S.P.R. 216, ¶ 9 (2010); 5 C.F.R. § 1201.36(a)(2). We
     find that the appellant’s two appeals, referred to here as Brasch I (CH-3443-14-
     0793-I-1) and Brasch II (CH-4324-15-0020-I-1), meet the regulatory criteria, and
     we therefore join them.
¶3        In both appeals, the appellant, a computer specialist with the agency’s
     Federal Aviation Administration (FAA), requested a hearing on his claims that
     the agency violated his rights under USERRA, causing him to suffer harassment,
     retaliation, and discrimination, and creating a hostile working environment.
     Brash I, Initial Appeal File (IAF-1), Tab 1; Brash II, Initial Appeal File (IAF-2),
     Tab 1. The administrative judge issued orders explaining the appellant’s burden
     to establish jurisdiction over his appeals and the parties responded. IAF-1, Tabs
     3-4, 7; IAF-2, Tabs 3-4, 7. The agency also filed motions to stay discovery until
                                                                               3

     the administrative judge decided the issue of jurisdiction, and the administrative
     judge granted the agency’s motion in each case. IAF-1, Tabs 3-4, 10; IAF-2,
     Tabs 3-4, 12. Without holding the requested hearings, but after considering the
     written record, the administrative judge dismissed both appeals for lack of
     jurisdiction.   IAF-1, Tab 11, Initial Decision (ID-1); IAF-2 Tab 13, Initial
     Decision (ID-2).
¶4         In his timely filed and nearly identical petitions for review, the appellant
     complains that the administrative judge denied him discovery. Brasch I, Petition
     for Review (PFR) File, Tab 1 at 10. 2 He contends that, had the administrative
     judge allowed him to engage in discovery, he would have been able to establish
     jurisdiction over his appeals.     Id.   The agency responded in opposition to the
     appellant’s petitions for review, and the appellant replied to the agency’s
     responses. PFR File, Tabs 4-5.
¶5         Two types of cases arise under USERRA:              (1) reemployment cases, in
     which the appellant claims that an agency has not met its obligations under
     38 U.S.C. §§ 4312-4318 following the appellant’s absence from civilian
     employment to perform uniformed service; and (2) so-called “discrimination”
     cases, in which the appellant claims that an agency has taken an action prohibited
     by 38 U.S.C. §§ 4311(a) or (b). Clavin v. U.S. Postal Service, 99 M.S.P.R. 619,
     ¶ 5 (2005).     The appellant’s claims in these appeals arise under 38 U.S.C.
     § 4311(a). IAF-1, Tab 4 at 5; IAF-2, Tab 4 at 5.
¶6         To establish jurisdiction under 38 U.S.C. § 4311(a), an appellant must
     allege that: (1) he performed duty or has an obligation to perform duty in a
     uniformed service of the United States; (2) the agency denied him initial
     employment, reemployment, retention, promotion, or any benefit of employment;
     and (3) the denial was due to the performance of duty or obligation to perform

     2
       Because there is only a slight difference in the pagination and text of the appellant’s
     two petitions for review, and the tabs in each file are the same, the similarities obviate
     the need for citations to both petition for review files.
                                                                               4

     duty in the uniformed service.          Hillman v. Tennessee Valley Authority,
     95 M.S.P.R. 162, ¶ 5 (2003).         Once an appellant has established Board
     jurisdiction over his USERRA claim, via the requisite nonfrivolous allegations, 3
     he has an unconditional right to a hearing on the merits of his claim. Downs v.
     Department of Veterans Affairs, 110 M.S.P.R. 139, ¶¶ 17-18 (2008), cited with
     approval in Baney v. Merit Systems Protection Board, 415 F. App’x 244, 246
     (Fed. Cir. 2011).
¶7        The Board employs a broad and liberal standard for construing USERRA
     claims, affording deference to veterans’ allegations of discrimination which they
     allege that they have experienced due to their military service.            Id. ¶ 15.
     However, our reviewing court, in a nonprecedential but nonetheless illustrative
     opinion, has observed that, under the Board’s deferential standard, the right to a
     hearing does not attach “simply because a claimant files a claim with the Board
     that he denominates as a USERRA claim[,]” as the appellant has done in the
     instant appeals but instead “only attaches after a USERRA claimant makes a
     nonfrivolous allegation of Board jurisdiction.”        Baney, 415 F. App’x at 246
     (citing Downs, 110 M.S.P.R. 139, ¶ 18). As the following discussion indicates,
     the appellant has failed to nonfrivolously allege that the agency’s actions he
     complained of in his appeals occurred due to his performance of duty or
     obligation to perform duty in the uniformed service.
¶8        In response to the jurisdictional order in Brash I, the appellant provided a
     copy of his DD-214 Certificate of Release or Discharge from Active Duty
     reflecting his military service. IAF-1, Tab 4 at 10. The appellant asserted that

     3
       A nonfrivolous allegation of Board jurisdiction is an allegation of fact wh ich, if
     proven, could establish a prima facie case that the Board has jurisdiction over the
     matter at issue. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994). To meet
     the nonfrivolous standard, an appellant need only plead allegations of fact which, if
     proven, could show jurisdiction, though mere pro forma allegations are insufficient to
     satisfy the nonfrivolous standard. Walker v. Department of the Army, 119 M.S.P.R.
     391, ¶ 6 n.2 (2013).
                                                                               5

      the agency discriminated against him when it refused him entry to his former
      workplace and then insisted on escorting him during a visit to his last assigned
      FAA office when he went there to collect personal and work items. Id. at 6-7.
      The appellant also argues that an agency official dictated exactly what office
      supplies he could take from his last assigned FAA office to his current FAA
      office. Id. at 7. The agency explained that the appellant’s last assigned FAA
      office was located in a secure facility and that, due to a 3-year detail assignment
      to the Department of Defense and his full-time telecommuting since returning to
      the agency at the end of that detail, the appellant had not worked in that particular
      facility for over 4 years.   IAF-1, Tab 7 at 4-5. Because the agency therefore
      considered him a visitor in a secure facility, he was initially denied access and
      then required to be escorted while on the premises.         Id. at 5.   In a sworn
      declaration, the agency official who escorted the appellant averred that his duties
      required him to escort the appellant during his visits and that he only allowed the
      appellant to collect his personal belongings and not to take agency supplies or
      equipment. Id. at 10-11.
¶9         In Brash I, the administrative judge found that “[t]he deprivation asserted
      by the appellant is not a denial of a benefit of employment, no matter how
      broadly and liberally the term is construed.”         ID-1 at 4.     Moreover, the
      administrative judge noted that the appellant failed to even allege that “the
      agency’s decision not to give him free rein in a secure facility or the particular
      office supplies he wanted is due to his military service.” ID-1 at 5. We agree
      with the administrative judge that the appellant therefore failed to make a
      nonfrivolous allegation sufficient to establish Board jurisdiction in Brash I.
¶10        In his response to the jurisdictional order in Brash II, the appellant also
      provided a copy of his DD-214. IAF-2, Tab 4 at 10. In this appeal, he asserted
      that the agency discriminated against him when the FAA Administrator held a
      town hall event on a Jewish holiday and failed to reschedule it after the appellant
      repeatedly requested him to do so.      Id. at 6-7.   The appellant claims that the
                                                                               6

      Administrator’s decision not to respond to his complaints or change the meeting
      date is harassment, retaliation, and discrimination, and evidences a hostile work
      environment. Id. at 7.
¶11        In Brash II, the administrative judge found that the appellant offered
      nothing but his unsupported claims that the agency’s decision to hold the town
      hall event on a Jewish holiday was due to his military service or that the agency
      did so in retaliation for his numerous USERRA complaints.           ID-2 at 3.    He
      observed that other Jewish employees were similarly affected by the agency’s
      decision regardless of whether they served or were obligated to perform duty in
      the uniformed service.        Id.     We agree with the administrative judge’s
      determination that neither the appellant’s military service nor his USERRA
      appeals appear to have factored into the agency’s decisions regarding the town
      hall event.    Id.   Moreover, as noted above, we agree with the administrative
      judge’s observation in both appeals that the appellant’s mere citation to
      USERRA, without more, is insufficient to entitle him to a hearing on his claim.
      ID-1 at 5-6; ID-2 at 3-4; see Baney, 415 F. App’x at 246 (citing Downs,
      110 M.S.P.R. 139, ¶ 18).
¶12        Regarding discovery, the record reflects that the agency moved in both
      cases to stay discovery pending the administrative judge’s ruling on jurisdiction.
      IAF-1, Tab 6; IAF-2, Tab 5.          The administrative judge granted the agency’s
      motions.      IAF-1, Tab 10; IAF-2, Tab 12.         As noted above, the appellant
      challenges this on review and argues that, had he been allowed to engage in
      discovery, the documents would have allowed him to establish jurisdiction over
      his appeals. PFR File, Tab 1 at 10.
¶13        An appellant is entitled to request the discovery of relevant materials to
      assist him in meeting the burden of establishing jurisdiction.               Russo v.
      Department of the Navy, 85 M.S.P.R. 12, ¶ 8 (1999); Rison v. Department of
      Defense, 73 M.S.P.R. 390,           394   (1997).   Relevant   information   includes
      information that appears reasonably calculated to lead to the discovery of
                                                                               7

admissible evidence. Mc Grath v. Department of the Army, 83 M.S.P.R. 48, ¶ 7
(1999).   Administrative judges have broad discretion in ruling on discovery
matters and, absent a showing of an abuse of discretion, neither the Board nor its
reviewing court will find reversible error in such rulings. E.g., Spezzaferro v.
Federal Aviation Administration, 807 F.2d 169, 173 (Fed. Cir. 1986).
Importantly, even though the appellant maintains that discovery would have
enabled him to establish jurisdiction over his appeals, PFR File, Tab 1 at 10, in
both of his appeals below and in his petitions for review, he failed to identify any
specific item he sought in discovery that even appears reasonably calculated to
lead to the discovery of admissible evidence that would assist him in establishing
jurisdiction.   Thus, the appellant failed to show that the administrative judge
abused his discretion in granting the agency’s motion for a stay of discovery.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

      The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
                                                                               8

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.

FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.


               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
PROTEC GmbH                                   )      ASBCA No. 61185
                                              )
Under Contract No. W912CM-14-P-0008           )

APPEARANCES FOR THE APPELLANT:                       Paul D. Reinsdorf, Esq.
                                                      Attorney at Law
                                                      Frankfurt/Main, Germany

                                                     Steven J. Kmieciak, Esq.
                                                      Seyfarth Shaw LLP
                                                      Washington, DC

APPEARANCES FOR THE GOVERNMENT:                      Raymond M. Saunders, Esq.
                                                      Army Chief Trial Attorney
                                                     Dana J. Chase, Esq.
                                                      Trial Attorney

                  OPINION BY ADMINISTRATIVE JUDGE SWEET

        This appeal involves a contract between the Regional Contracting Office,
Wiesbaden (government) and appellant PROTEC GmbH (PROTEC) to maintain and
repair equipment at U.S. Army Garrison, Wiesbaden. The government refused to pay
some invoices. PROTEC submitted a claim seeking to have the government pay the
unpaid invoices. The contracting officer (CO) issued a final decision (COFD) denying
that claim, which PROTEC appeals.

        The government argues that it properly refused to pay the unpaid invoices
because, inter alia, 1 PROTEC submitted electronic reports and invoices late, which
prevented the government from verifying that PROTEC properly performed the
billed-for services. PROTEC responds that the government suffered no prejudice from
the late electronic reports and invoices because timely paper reports, the maintenance
schedule, and the contracting officer representative's (COR's) role in arranging
emergency repairs allowed the government to verify performance. PROTEC also
argues that it submitted the invoices late because of delays receiving signed work
certificates from the government and invoices from suppliers.

1
    Because we find that PROTEC' s late submission of reports and invoices justified the
        government's refusal to pay the unpaid invoices, we do not address the
        government's other proffered reasons for not paying the unpaid invoices.
       ·The government properly refused to pay the unpaid invoices because PROTEC
failed to submit timely electronic reports and invoices. The lack of timely electronic
reports and invoices prevented the government from verifying the work because
PROTEC did not submit the paper reports on time, follow the maintenance schedule,
or arrange all repairs through the COR or the fire inspector. For repairs in particular,
timely reports and invoices were necessary to verify the time and material charges.
Nor did government work certificate signature delays or supplier invoice delays
cause-let alone justify-the late unpaid invoice submissions. Because the
government properly refused to pay the unpaid invoices, the appeal is denied.

                                 FINDINGS OF FACT

I. Contract

       1. On December 20, 2013, the government awarded Contract No. W912CM-14-D-0008
(0008 Contract) to PROTEC for the maintenance and repair of electronic doors, gates,
scanners, sauna compact system and electric/hydraulic barriers, and bollards at U.S. Army
Garrison, Wiesbaden (R4, tab 3). The 0008 Contract consisted of two main types of
services-preventative maintenance and on-call emergency repairs (id. at 51-53).

      2. PROTEC had to submit a maintenance schedule within ten days of contract
award (R4, tab 3 at 54).

      3. Only the COR or the fire inspector could place an emergency repair call, to
which PROTEC had to respond within four hours (R4, tab 3 at 53).

       4. The 0008 Contract provided that the government would monitor PROTEC's
performance in accordance with a Quality Assurance Surveillance Plan (QASP) (R4,
tab 3 at 47). The QASP detailed the surveillance and evaluation of PROTEC's
performance (supp. R4, tab 204). Under the QASP, the government would document
deficient performance in non-conformance reports (NCRs) (id. at 4-6).

       5. The 0008 Contract required PROTEC to submit an electronic on-call
emergency report within two days of performing an emergency repair, and an
electronic condition report (collectively, reports) within seven days of performing
maintenance (R4, tab 3 at 54-55).

       6. The 0008 Contract also required PROTEC to "[ s ]ubmit invoices for the
previous month's contract services in Wide Area Work Flow (WA WF) for approval by
the COR No Later Than (NL T) the 10th working [day] of the next month." By stating
that invoices had to be for "the previous month's services," the 0008 Contract required

                                           2
that each invoice be for no more than one month's services. (R4, tab 3 at 30 (emphasis
added))

        7. The government would pay PROTEC for the maintenance on a fixed-price
basis, and for the repairs on a time-and-material basis (R4, tab 3 at 3-25, 47).

II.      Contract Administration

        A.    Maintenance Schedule and Emergency Calls

       8. In accordance with Performance Work Statement§ 5.7, PROTEC submitted a
proposed maintenance schedule on January 13, 2014, which the government approved
(app. supp. R4, tab 11).

        9. PROTEC did not follow the maintenance schedule, even before April 2016, 2
as the COR repeatedly informed PROTEC through NCRs (R4, tabs 22-24, 29, 34, 41,
44, 75, 97, 99, 125, 139, 156, 199, 199a; app. supp. R4, tabs 3d, 3s; tr. 1/95, 2/126-28).
In particular, at a February 10, 2016 performance meeting, the government faulted
PROTEC for not following the maintenance schedule. However, it also noted that the
schedule was not logical. 3 Therefore, the parties agreed that PROTEC would submit a
revised maintenance schedule (R4, tab 39 at 4; app. supp. R4, tab 343n).

        10. Melanie Brill-PROTEC's business manager-testified that PROTEC
notified the government weekly what work it would perform. However, she did not
testify for how long PROTEC provided those weekly notifications. (Tr. 1/122) As
documented in NCR 0016, PROTEC provided weekly schedules for a few weeks, but
then stopped (app. supp. R4, tab 3n at 17; tr. 2/206).

      11. On April 7, 2016, PROTEC submitted a proposed revised maintenance
schedule (R4, tab 55; app. supp. R4, tab 13).

       12. On May 2, 2016, the CO informed PROTEC that the proposed revised
maintenance schedule was unacceptable. The COR also certified that PROTEC had
not performed electrical work on schedule. (R4, tab 73) Indeed, PROTEC never
performed the electrical work (tr. 2/111 ).

2
    As discussed below, April 2016 is significant because PROTEC claims that the
        cause of schedule slippage was the government's delay in responding to an
        April 7, 2016 proposed revised maintenance schedule.
3
    The schedule was not logical because it called for maintenance of a climbing wall
        after the climbing season started (tr. 1/113-14 ).

                                            3
       13. On May 7, 2016, PROTEC responded to the CO, explaining that it was
unable to perform work according to the schedule due to its employee's injury (app.
supp. R4, tab 3n at 11 ).

        14. At a May 11, 2016 performance meeting, the government faulted PROTEC
for not following the schedule (R4, tab 76 at 2).

      15. On May I 7, 2016, PROTEC submitted a second revised proposed
maintenance schedule (R4, tab 84 at 1-2). The government did not approve that
schedule (tr. 1/131).

     16. On June 16, 2016, the CO added a comment to an NCR, indicating that
PROTEC still was not adhering to the revised schedule (app. supp. R4, tab 3n at 25).

       17. On September 8, 2016, the CO emailed PROTEC to inform it that the COR
had observed PROTEC employees performing unscheduled maintenance. PROTEC
responded that it had been unable to reach the COR by telephone to schedule the
maintenance. The CO responded that PROTEC was not authorized to perform
unscheduled maintenance without the COR's prior approval, and an unanswered
telephone call did not constitute prior approval. PROTEC agreed not to perform
unauthorized maintenance in the future. (R4, tab l 55e)

      18. The failure to follow the maintenance schedule prevented the government
from verifying that PROTEC had performed the maintenance properly (tr. 2/126-28).

     19. PROTEC responded to emergency calls from other individuals besides the
COR and the fire inspector (R4, tab 193 at 2).

       B.     Reports

      20. PROTEC did not submit electronic emergency repair reports within two
days of emergency services, or electronic condition reports within seven days of
maintenance (tr. 1/104-05). Rather, PROTEC documented its work by completing
paper work certificates (app. supp. R4, tab 6).

         21. However, as both the CO's testimony and the contemporaneous NCRs
establish, PROTEC did not submit the work certificates on time (i.e., within two or
seven days of the repairs or maintenance respectively) (R4, tabs 32-33, 39, 42, 76, 91,
95-95a, 97, 147a, 151, 190, 199c-d, 199f-h, 199j; app. supp. R4, tabs 3d-e, 3i-3j, 3p,
3r, 3t; tr. 2/126-27, 140-41, 143-44). In response to the NCRs, PROTEC did not
dispute that it submitted the reports late (app. supp. R4, tabs 3i-3j, 3p, 3r-3t). Indeed,
on September 12, 2016, PROTEC admitted that "most of [the Emergency Reports had]
not been sent within the contracted 2-day time frame" (app. supp. R4; tab 3i at 15).

                                            4
        22. The testimony of Jurgen Rinner-PROTEC's contract manager-further
confirms that PROTEC submitted work certificates for the unpaid work late.
Mr. Rinner testified that he would submit the work certificates to the COR, who would
sign the certificates within a day or two of performance (tr. 1/74, 92). Therefore, the
fact that almost none of the work certificates for the unpaid work contain the COR' s
signature demonstrates that Mr. Rinner did not obtain the COR's signature on those
work certificates by submitting them within a day or two of performance (app. supp.
R4, tabs 15-33).

        23. The late work certificates prevented the government from verifying that
PROTEC had performed the services properly (tr. 2/127-28, 140-41). In December 7.
2015 and September 20, 2016 letters, the CO notified PROTEC that it was not
submitting timely reports. The letters also stated that failure to submit timely reports
rendered it impossible to verify performance, and would result in non-payment of
invoices. (R4, tabs 26, 193)

       C.     Invoices

       24. Ms. Brill used the work certificates to generate invoices. Each invoice
covered multiple work certificates. The invoices included a cover sheet, which
indicated the date PROTEC created the invoice (tr. 1/133). The invoices also
might include supporting documents, such as work certificates and supplier invoices
(tr. 1/40, 116, 129, 133). The government did not pay nineteen of the invoices
(unpaid invoices) (app. supp. R4, tabs 15-33).

       25. For the unpaid invoices, as Table 1 shows, PROTEC did not submit the
invoices for the previous month's contracted services in WA WF within the tenth
working day of the next month. Rather, PROTEC was missing the submission deadline
by months and years. (App. supp. R4, tabs 15-33)

                                            5
                       TABLE 1: UNPAID INVOICE DELAYS

    Invoice #1 41 Date of Month(s) And Year(s) Of        Date          Date       Work
                    Last             Servicesl 5l       Invoice       Invoice     Cert.
                  Supplier                               Duel 61      Created
                  Invoice,
                   If Any
    100019/16 None         12/ 15 to 1/ 16             01/14/16       07/18/16 Yes
    100020/16 12/31/15 02/14, 01/15 to 04/15,          03/13/14       07/18/16 Yes
                                           7
                           06/15 to 12/15
    100030/16 03/28/15 01/16                           02/12/16       07/18/16 Yes
    100755/15 07/22/15 01/15 to 09/15                  02/13/15       07/18/16 Yes
    100806/15 08/31/15 01/15 to 02/15, 04/15 to        02/13/15       07/18/16 Yes
                           09/15
    100809/15 None         03/15                       04/14/15       07/18/16    Yes
    100810/15 None         03/15                       04/14/15       07/18/16    Yes
    301085/16 03/31/16 01/16 to 04/16                  02/12/16       07/18/16    Yes
    301223/16 None         01/15, 04/15, 06/15, 09/15, 02/13/15       07/18/16    Yes
                           ll/15tol2/15
    301283/16 9/08/15      03/15 to 04/15, 07/15 to    04/14/15       07/20/16 Yes
                           09/15
    301317/16 None         12/15                       01/14/16       07 /28/16   Yes
    301318/16 None         03/15                       04/14/15       08/15/16    No
    301369/16 None         03/15                       04/14/15       08/15/16    No
    301372/16 None         07/15, 09/15 to 11/15       08/14/15       08/16/16    No
    301376/16 None         03/14 to 04/14              04/14/14       08/17/16    No

4
    In this opinion, we omit the prefix "1000 l" from all invoice numbers.
5
    Where possible, we derive the "Month(s) And Year(s) of Services" from the work
         certificates. Where PROTEC did not attach work certificates, we use the dates
         PROTEC scheduled work, as reported in the worksheets attached to the invoice
         cover sheet.
6
    Because PROTEC was supposed to include only one month's services in an invoice,
         and the government could not partially pay an invoice, the "Date Invoice Due''
         column represents the tenth working day of the next month after the first month
         in which PROTEC provided billed-for services (R4, tab 3 at 30; tr. 2/50, 167).
7   The 100020/16 invoice included a work certificate dated November 27, 2016 (app.
         supp. R4, tab 25 at 55). That date clearly was a typographical error, as it was
         after the date PROTEC prepared the invoice on July 18, 2016 (id. at 1).
         Moreover, the receipt that follows that work certificate-which was dated
         November 24, 2015-shows that the work certificate date should have been
         November 27, 2015 (id. at 56).

                                            6
    301377/16   11/04/15   09/15 to    10/15             10/14/15     08/17/16   Yes
    301384/16   None       11/ 14 to   12/14             12/12/14     08/23/16   No
    301385/16   None       08/14 to    12/14             09/12/14     08/23/16   No
    301411/16   08/11/16   06/16 to    08/16             07 /14/16    09/14/16   Yes

(App. supp. R4, tabs 15-33)

       26. The government repeatedly notified PROTEC that it was submitting
invoices late, including in NCR 0012 (app. supp. R4, tab 3j; see also R4, tab 39 at 5).

        27. The late invoices prevented the government from verifying that PROTEC
had performed the services properly (tr. 2/167). Indeed, PROTEC acknowledged that
it was crucial for the government to receive a prompt invoice for repairs by conceding
that the COR could only verify the time and material charges with a tracked invoice
(tr. 1/116, 129).

       28. PROTEC does not dispute that it submitted the unpaid invoices late.
Rather, Ms. Brill testified that there were two reasons PROTEC submitted the unpaid
invoices late. (Tr. 1/119)

       29. First, Ms. Brill testified that PROTEC submitted the unpaid invoices late
because of delays receiving signed work certificates from the government (tr. 1/119).
However, in response to NCR 0012, PROTEC did not assert that it was submitting the
unpaid invoices late because of government work certificate signature delays (app.
supp. R4, tab 3j at 12). Further, PROTEC has not identified which specific unpaid
invoices government work certificate signature delays purportedly delayed. Nor has it
quantified how many days of delay the government work certificate signature delays
purportedly caused in each instance (id.). On the contrary, as Table 1 demonstrates,
many unpaid invoices 8 did not even include work certificates, making it impossible for
the government to track those invoices to the work (app. supp. R4, tabs 15-17, 21, 24,
28). For the remaining unpaid invoices, many supporting work certificates lacked
government signatures. Where there was a signature and a signature date, the
signature date was the service date, or shortly thereafter. Therefore, we find that
government work certificate signature delays did not cause the late unpaid invoice
submissions. (Id. tabs 18-20, 22-23, 25-27, 29-33)

     30. Second, Ms. Brill testified that PROTEC submitted the unpaid invoices late
because of delays receiving supporting supplier invoices (tr. 1/119). However,
PROTEC does not explain why the suppliers delayed submitting invoices (id.).

8
    In particular, Invoice Nos. 301318/16, 301369/16, 301372/16, 301376/16,
         301384/16, and 301385/16 did not include work certificates (app. supp. R4,
         tabs 15-33).

                                               7
Further, in response to NCR 0012, PROTEC did not assert that it was submitting the
unpaid invoices late because of supplier invoice delays (app. supp. R4, tab 3j at 13).
In any event, PROTEC has not identified which specific unpaid invoices the supplier
invoice delays purportedly delayed. Nor has PROTEC quantified how many days of
delay the supplier invoice delays purportedly caused in each instance (id.). On the
contrary, as Table 1 demonstrates, PROTEC did not even submit supplier invoices to
support 11 of the 19 unpaid invoices. 9 Moreover, PROTEC received the supplier
invoices for the remaining eight unpaid invoices at least a month-and up to a year-
before it created its invoice. Therefore, we find that supplier invoice delays did not
cause the late unpaid invoice submissions. (App. supp. R4, tabs 15-33)

III.    Procedural History

       3 1. On October 31, 2016, PROTEC submitted a certified claim for the unpaid
invoices (R4, tab 198).

        32. The CO issued a COFD denying the claim on February 28, 2017 (R4, tab 199
at 7-9).

        33. This appeal followed.

                                     DECISION

I. ·    The Government Properly Refused to Pay the Unpaid Invoices

       The government properly refused to pay the unpaid invoices because PROTEC
did not submit timely electronic reports or invoices. The government may refuse to
pay an invoice if a contractor does not deliver the services in accordance with the
contract requirements, or does not "properly and timely submit[] invoices for those
services." It is a contractor's burden to show that the nonpayment was improper.
Ahmed S. Al-Zhickrulla Est., ASBCA No. 52137, 03-2 BCA iJ 32,409 at 160,429-30.

      Here, PROTEC submitted electronic reports and invoices late. The 0008
Contract required PROTEC to submit electronic emergency repair reports within two
days of emergency repairs, and electronic condition reports within seven days of
maintenance (finding 5). It also required PROTEC to "[s]ubmit invoices for the
previous month's contract services in Wide Area Work Flow (WAWF) for approval by
the COR No Later Than (NLT) the 10th working [day] of the next month" (finding 6).
PROTEC did not submit an electronic emergency repair report within two days of

9
    In particular, PROTEC only supported Invoice Nos. 100020/16, 100030/16,
         100755/15, 100806/15, 301085/16, 301283/16, 301377/16, and 301411/16 with
         supplier invoices (app. supp. R4, tabs 15-33).

                                           8
each emergency repair, or an electronic condition report within seven days of each
maintenance, as required by the 0008 Contract (finding 20). Moreover, PROTEC did
not submit any of the unpaid invoices by the 10th working day of the next month after
the month in which PROTEC provided the billed-for services (finding 25). Indeed,
PROTEC was not a few days, or even weeks, late in submitting the unpaid invoices.
Rather, it was missing the submission deadlines by months and even over a year (id.).
Because PROTEC submitted electronic reports and invoices late, the government
properly refused to pay the unpaid invoices.

II.    PROTEC's Arguments to the Contrary are Meritless

        PROTEC argues that the late submissions of reports and invoices did not
prejudice the government. PROTEC also argues that the late submissions of invoices
in particular were excused. (App. br. at 47; app. reply br. at 38). As discussed below,
PROTEC has not met its burden of showing a lack of prejudice, or an excuse.

       A.    The Late Submissions of Reports and Invoices Prejudiced the
             Government

        PROTEC argues that the government suffered no prejudice from its late
submissions of electronic reports and invoices because timely paper work certificates,
the COR's awareness of the maintenance schedule, and the role of the COR and the
fire inspector in arranging emergency repairs permitted the COR to verify performance
(app. br. at 47; app. reply br. at 38). However, PROTEC has not met its burden of
showing a lack of prejudice.

       First, PROTEC has not shown that the work certificates permitted the COR to
verify performance because PROTEC did not submit timely paper work certificates to
the COR (finding 21 ). Indeed, many of the unpaid invoices lacked a work certificate
altogether, making it impossible for the government to track the invoice to the work
(findings, 25, 29).

        Second, PROTEC has not shown that awareness of the maintenance schedule
permitted the COR to verify the maintenance work because PROTEC did not follow
the schedule (finding 9). Without citing any evidence, PROTEC asserts that three of
the 19 unpaid invoices-namely Invoice Nos. 301318/16, 301369/16, and 301376/16-
involved electrical work that PROTEC performed on schedule (app. reply br. at 34).
However, as PROTEC concedes elsewhere (id. at 18), it did not perform the electrical
work on schedule (finding 12). Indeed, PROTEC never performed the electrical work
(id.). PROTEC also argues that it cannot be held responsible for the schedule slippage
because that slippage was due to the fact that it took the government approximately
three weeks-between April 7, 2016 and May 2, 2016-.to reject PROTEC's proposed

                                           9
"

    revised maintenance schedule (app. reply br. at 18, 192, at 32). 10 However, PROTEC
    was not following the schedule even before that period (finding 9). Indeed, almost
    none of the billed-for work in the unpaid invoices occurred between April 7, 2016 and
    May 2, 2016 (finding 25).

            Third, PROTEC has not shown that the COR and the fire inspector's role in
    arranging all emergency repairs permitted the COR to inspect the emergency repairs
    because the COR and the fire inspector did not make all the emergency repair
    appointments (finding 19). Moreover, as PROTEC acknowledges, it was crucial that it
    submit timely work certificates and invoices for repairs because tracked invoices were
    the only way the COR could substantiate the time and material charges (app. reply
    br. at 29-30; app. br. at 42; finding 27). Therefore, the late reports and invoices
    prejudiced the government by preventing it from verifying PROTEC's work and bills.

             B.    The Late Unpaid Invoice Submissions are not Excused

            PROTEC also argues that government work certificate signature delays and
    supplier invoice delays justified the late unpaid invoice submissions (app. br. at 47).
    However, PROTEC has not met its burden of showing that government work
    certificate signature delays and supplier invoice delays justified late unpaid invoice
    submissions.

            First, PROTEC has not shown that government work certificate signature
    delays justified the late unpaid invoice submissions. PROTEC did not assert in the
    contemporaneous documents that government work certificate signature delays caused
    the late unpaid invoice submissions (finding 29). Moreover, PROTEC has not
    identified which specific unpaid invoices government work certificate signature delays
    purportedly delayed (id.). Nor has it quantified how many days of delay the
    government work certificate signature delays purportedly caused (id.). On the
    contrary, the unpaid invoices show that many unpaid invoices did not even include
    work certificates (id.). Moreover, when the unpaid invoices included work
    certificates, many work certificates lacked government signatures (id.). Further, when
    the government signed and dated a work certificate, it did so on the service date, or
    shortly thereafter (id.). Such isolated cases of waiting a few days to receive a signed
    work certificate do not explain-let alone justify-the extensive delays in submitting
    the unpaid invoices (id.).

    10
         PROTEC also complains about the government's failure to tum over an internal
            memorandum regarding the February 10, 2016 performance meeting.
            However, PROTEC has not shown that that caused schedule slippage.
            PROTEC also argues that it provided weekly notices of the maintenance
            schedule. (App. br. at 45) However, it only provided those notices for a few
            weeks (finding 10).

                                                10
       Second, PROTEC has not shown that supplier invoice delays justified the late
invoice submissions. Delays by a supplier only excuse a contractor's delay if the
supplier's delays themselves are excusable. E&R Inc., ASBCA No. 48056, 95-2 BCA
127,745 at 138,338; Maeda Gumi, ASBCA No. 11122, 67-1BCA16144 at 28,487.
Here, PROTEC does not even attempt to show that any supplier invoice delays were
excusable (finding 30). Further, PROTEC did not assert in the contemporaneous
documents that supplier invoice delays caused the late unpaid invoice submissions
(id.). Moreover, PROTEC has not identified which specific unpaid invoices the
supplier invoice delays purportedly delayed (id.). Nor has it quantified how many
days of delay the supplier invoice delays purportedly caused (id.). On the contrary, the
unpaid invoices show that PROTEC did not even support most of the unpaid invoices
with supplier invoices (id.). For the unpaid invoices PROTEC supported with supplier
invoices, it received the supporting supplier invoices at least a month-and up to a
year-before it created each unpaid invoice (id.). Therefore, any supplier invoice
delays did not cause-let alone justify-the late unpaid invoice submissions (id.).

       In particular, PROTEC argues that one work certificate underlying Invoice
No. 100755/15 shows that PROTEC performed repairs on February 5, 2015 and
February 6, 2015, but did not receive a supplier invoice until six months later-on
July 21, 2015. However, PROTEC offers no explanation for the supplier's six-month
delay. (App. reply br. at 37-38) Moreover, instead of submitting its invoice by the
tenth business day of the next month after receiving that supplier invoice, PROTEC
waited about a year-until July 18, 2016-to submit Invoice No. 100755/15
(finding 25). Therefore, PROTEC's example only serves to highlight why any
supplier invoice delays did not cause-much less justify-the late unpaid invoice
submission.

                                   CONCLUSION

      This appeal is denied.

      Dated: May 15,2019

                                                  JAMESR. SWEET
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals

(Signatures continued)

                                           11
 l concur                                        I concur

 RICHARD SHACKLEFORD                             OWEN C. WILSON
 Administrative Judge                            Administrative Judge
 Acting Chairman                                 Vice Chairman
 Armed Services Board                            Armed Services Board
 of Contract Appeals                             of Contract Appeals

     I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 61185, Appeal of
PROTEC GmbH, rendered in conformance with the Board's Charter.

      Dated:

                                                 PAULLA K. GATES-LEWIS
                                                 Recorder, Armed Services
                                                 Board of Contract Appeals

                                           12


                Filed 1/23/20 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                               2020 ND 12

Minn-Kota Ag Products, Inc.,                                   Appellant

     v.
North Dakota Public Service Commission,
Dakota Valley Electric Cooperative, Inc.,
and Otter Tail Power Company,                                  Appellees

                               No. 20190127

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable David E. Reich, Judge.

AFFIRMED IN PART AND REVERSED IN PART.

Opinion of the Court by VandeWalle, Justice.

Loren L. Hansen, Minneapolis, MN, for appellant.

Zachary E. Pelham, Special Assistant Attorney General, Bismarck, ND, for
appellee North Dakota Public Service Commission.

Kimberly J. Radermacher, LaMoure, ND, for appellee Dakota Valley Electric
Cooperative, Inc.
   Minn-Kota Ag Products, Inc. v. N.D. Public Service Commission
                           No. 20190127

VandeWalle, Justice.

[¶1] Minn-Kota Ag. Products, Inc. appealed from a district court order
dismissing Minn-Kota’s appeal of findings of fact, conclusions of law and order
issued by the North Dakota Public Service Commission (PSC) for lack of
standing and affirming an administrative law judge’s (ALJ) order denying
Minn-Kota’s petition to intervene. Minn-Kota argues it has standing to appeal
the PSC’s decision because it participated in the proceedings before the PSC,
and the PSC’s decision should be reversed because it is not supported by the
facts or law. In the alternative, Minn-Kota argues the case should be remanded
to the PSC and it should be allowed to intervene and introduce additional
evidence into the record. We affirm in part and reverse in part.

                                        I

[¶2] In 2017, Minn-Kota began construction of a large, $20 million grain
handling facility near the municipalities of Barney and Mooreton, North
Dakota. Given its size, the facility needed to be equipped with three-phase
electric service to meet its demand requirements. During construction of the
facility, Minn-Kota received proposals to provide electric power to the facility
from Otter Tail Power Co., an electric public utility, and Dakota Valley Electric
Cooperative, a rural electric cooperative. Otter Tail proposed building a
distribution substation at the Minn-Kota facility and extending 1,000 feet of
underground cable from an existing above-ground transmission line to feed the
proposed substation. Dakota Valley proposed improving its existing three-
phase infrastructure and extending approximately 4,000 feet of underground
cable from the improved, existing infrastructure to the Minn-Kota facility.
Minn-Kota determined Otter Tail would provide cheaper and more reliable
electric service and chose Otter Tail as its preferred provider.

[¶3] In February 2017, Otter Tail submitted an “Application for Permanent
Authority” with the PSC seeking a certificate of public convenience and
necessity under N.D.C.C. § 49-03-01 and § 49-03-01.1 as required by an act

                                       1
known as the Territorial Integrity Act codified at N.D.C.C. §§ 49-03-01 to -01.5.
Along with Otter Tail’s application, Minn-Kota voluntarily submitted an
“Appearance by Customer” expressing its desire for Otter Tail to provide
electric power to the facility. However, Minn-Kota did not formally intervene
in the proceedings. Rather, it relied on Otter Tail to represent its interests. The
PSC issued notice of opportunity for a hearing and served the notice on Dakota
Valley, the rural electric cooperative providing service in the area. Dakota
Valley protested Otter Tail’s application and requested a hearing. At the
request of the PSC, an administrative law judge was appointed to preside as a
procedural hearing officer.

[¶4] Because of Dakota Valley’s protest, the PSC issued a notice of hearing
identifying ten issues to be considered:

      1.    From whom does the customer prefer electric service?
      2.    What electric suppliers are operating in the general area?
      3.    What electric supply lines exist within at least a two-mile
            radius of the location to be served, and when were they
            constructed?
      4.    What customers are served by electric suppliers within at
            least a two-mile radius of the location to be served?
      5.    What are the differences, if any, between the electric
            suppliers available to serve the area with respect to
            reliability of service?
      6.    Which of the available electric suppliers will be able to serve
            the location in question more economically and still earn an
            adequate return on its investment?
      7.    Which supplier’s extended electric service would best serve
            orderly and economic development of electric service in the
            general area?
      8.    Would approval of the applications result in wasteful
            duplication of investment or service?
      9.    Is it probable that the location in question will be included
            within the corporate limits of a municipality within the
            foreseeable future?
      10.   Will service by either of the electric supplier in the area
            unreasonably interfere with the service or system of the
            other?

                                        2
[¶5] A hearing on Otter Tail’s application was held in October 2017. Otter
Tail and Dakota Valley were represented at the hearing, and each offered
evidence and testimony. Testimony was received from representatives and
employees of Otter Tail and Dakota Valley and from George Schuler IV, a
member of the board of directors and a minority owner of Minn-Kota. Minn-
Kota was not a formal party represented at the hearing and, other than the
testimony offered by Schuler, Minn-Kota did not contribute to the hearing.

[¶6] In December 2017, the PSC held a work session to contemplate and
discuss Otter Tail’s application. At the work session, the PSC expressed
concern that Otter Tail’s proposal would result in wasteful duplication of
investment and would not best serve orderly and economic development of
electric service in the area. The concerns expressed by the PSC at the work
session made it clear the PSC was likely going to deny Otter Tail’s application.

[¶7] As a result, Minn-Kota submitted a petition to intervene on February 1,
2018, because it “had a unique perspective on [the] issues before the [PSC], and
because Minn-Kota no longer felt that its interest in the issuance of the
certificate was sufficiently aligned with or adequately represented by Otter
Tail’s appearance before the [PSC] . . . .” Minn-Kota sought intervention so that
it could introduce additional evidence and address the concerns expressed by
the PSC during the work session. The ALJ denied Minn-Kota’s petition. The
ALJ determined Minn-Kota submitted its petition after the deadline to
intervene had passed and Minn-Kota had not shown good cause as to why it
should be allowed to intervene late. Minn-Kota requested the ALJ reconsider
his decision, and the ALJ again denied Minn-Kota’s request.

[¶8] In March 2018, the PSC issued its findings of fact, conclusions of law and
order. The PSC denied Otter Tail’s application finding that although Minn-
Kota preferred Otter Tail and Otter Tail would be able to provide more
affordable service, both Otter Tail and Dakota Valley would provide reliable
service to the facility, extension of service by Dakota Valley would best serve
orderly and economic development of electric service in the general area, and
extension of service by Otter Tail would result in a wasteful duplication of

                                       3
service and investment. Minn-Kota appealed to district court, challenging the
PSC’s decision and the ALJ’s order denying Minn-Kota’s petition to intervene.

[¶9] The district court affirmed the ALJ’s order denying Minn-Kota’s petition
and dismissing Minn-Kota’s appeal of the PSC’s decision for lack of standing.
The district court agreed with the ALJ’s order and concluded Minn-Kota had
not shown good cause “for the delay in filing its Petition to Intervene.”
Additionally, the district court concluded the “Appearance by Customer”
submitted by Minn-Kota and Schuler’s testimony at the hearing was “more
akin to participation as a witness” and, therefore, Minn-Kota had not
adequately participated in the proceedings for them to have standing. The
district court did not review the merits of the PSC’s decision, but it did state
the decision appeared to be a “process of rational application of the facts to the
law and that decision would have been affirmed.”

                                        II

[¶10] Standing is a question of law, which is reviewed de novo on appeal.
Dakota Res. Council v. Stark Cty. Bd. of Cty. Comm’rs, 2012 ND 114, ¶ 5, 817
N.W.2d 373; see also Johnson v. Taliaferro, 2011 ND 34, ¶ 9, 793 N.W.2d 804
(stating interpretation of statute is a question of law). We have explained the
over-arching concept of standing for justiciability:

      The question of standing focuses upon whether the litigant is
      entitled to have the court decide the merits of the dispute. It is
      founded in concern about the proper—and properly limited—role
      of the courts in a democratic society. Without the limitation of the
      standing requirements, the courts would be called upon to decide
      purely abstract questions. As an aspect of justiciability, the
      standing requirement focuses upon whether the plaintiff has
      alleged such a personal stake in the outcome of the controversy as
      to justify exercise of the court’s remedial powers on his behalf. The
      inquiry is two-fold. First, the plaintiff must have suffered some
      threatened or actual injury resulting from the putatively illegal
      action. Secondly, the asserted harm must not be a generalized
      grievance shared by all or a large class of citizens; the plaintiff
      generally must assert his own legal rights and interests, and

                                        4
      cannot rest his claim to relief on the legal rights and interests of
      third parties.

Shark v. U.S. W. Commc’ns, Inc., 545 N.W.2d 194, 198 (N.D. 1996) (quoting
other cases).

[¶11] An administrative agency “challenging the standing of those seeking a
review of its decision. . . . is a deliberate effort to prevent a judicial review of
the agency’s decision,” which we do not look favorably upon. Citizens State
Bank of Neche v. Bank of Hamilton, 238 N.W.2d 655, 658 (N.D. 1976); Reliance
Ins. Co. v. Pub. Serv. Comm’n, 250 N.W.2d 918, 924 (N.D. 1977). We have said
a narrow or limited construction should not be placed on who may be a party
for purposes of appeal or review:

            The question of who is a proper party should not be resolved
      on strict technical grounds which could result in the public being
      denied the opportunity to question the actions of the governing
      agency, body or board, as the situation may be. Any doubt on the
      question of standing involving a decision by an administrative
      body should be resolved in favor of permitting the exercise of the
      right of appeal by any person aggrieved in fact.

             Generally, parties to an action or proceedings are set out in
      the title of the action or proceedings. However, in matters before
      administrative agencies it is common to entitle the proceedings “IN
      THE MATTER OF ___.” Such entitlement does not serve as an aid
      in determining who is a party, except for the applicant, on which
      there is no question. The question of who are parties to the
      proceedings must be determined from the record rather than from
      the entitlement of the proceedings. The information as disclosed
      by the record constitutes the basis upon which a determination can
      be made as to who are parties to the proceedings.

In re Bank of Rhame, 231 N.W.2d 801, 808 (N.D. 1975) (footnote omitted).
However, the right to appeal does not extend to merely nominal parties who
are not aggrieved. Shark, 545 N.W.2d at 197.

[¶12] Under N.D.C.C. § 28-32-42, any party to a proceeding has standing to
appeal an agency’s decision. A party is defined as “each person named or

                                         5
admitted as a party or properly seeking and entitled as of right to be admitted
as a party.” N.D.C.C. § 28-32-01(9).

[¶13] Prior to the enactment of the statutory definition of a “party,” this Court
set forth a three-part test to determine who may be considered a party to a
proceeding for standing purposes. Bank of Rhame, 231 N.W.2d at 807-08. In
Bank of Rhame we stated, “any person who is directly interested in the
proceedings before an administrative agency who may be factually aggrieved
by the decision of the agency, and who participates in the proceeding before
such agency” is a party and has standing to appeal from the decision of the
agency. Id. at 808. In Shark v. U.S. West Communications, Inc., we held the
enactment of N.D.C.C. § 28-32-01(9) did not overrule the standing doctrine of
Bank of Rhame, and the definition of a “party” in § 28-32-01(9) does not change
who may be considered a party for standing purposes. 545 N.W.2d at 197, 197
n.1. Likewise, this Court has continued to employ the three-part test set forth
in Bank of Rhame. See, e.g., In re Juran & Moody, Inc., 2000 ND 136, ¶¶ 16-
17, 613 N.W.2d 503.

[¶14] Applying the above stated principles and the Bank of Rhame three-part
test, we conclude Minn-Kota has standing to appeal the PSC’s decision.

                                       A

[¶15] By having a preference for Otter Tail as its preferred electric service
provider, Minn-Kota was directly interested in the proceedings before the PSC.

                                       B

[¶16] Minn-Kota was factually aggrieved by the PSC’s decision. To be factually
aggrieved, a party must be injured in some manner. Washburn Pub. Sch. Dist.
No. 4 v. State Bd. of Pub. Sch. Educ., 338 N.W.2d 664, 667 (N.D. 1983) (citing
Bernhardt v. Rummel, 319 N.W.2d 159, 160 (N.D. 1982)). That is, a decision
must enlarge or diminish a party’s interest. Id. (citing Bank of Neche, 238
N.W.2d 655 (N.D. 1976)). But the potential to be factually aggrieved is not
enough; a party must be aggrieved in fact. Id. In other words, a party must
gain or lose something to be aggrieved. Id. Additionally, a mere dissatisfaction

                                       6
or displeasure with a decision is not enough to appeal from such decision. Id.
(citing Huber v. Miller, 101 N.W.2d 136, 140 (N.D. 1960)).

[¶17] The district court determined Minn-Kota was factually aggrieved by the
PSC’s decision, and the PSC itself concedes Minn-Kota was aggrieved. Dakota
Valley argues Minn-Kota was not aggrieved by the PSC’s decision because the
PSC found both Dakota Valley and Otter Tail would provide reliable service
and because there is not enough evidence in the record to conclude that Otter
Tail would provide more affordable service to Minn-Kota. Dakota Valley’s
argument is misplaced. Dakota Valley essentially argues that, on the one hand,
the PSC correctly found Dakota Valley would provide reliable service to Minn-
Kota, but on the other hand, the PSC incorrectly found Otter Tail would
provide more affordable service. We are asked to conclude Minn-Kota was not
factually aggrieved by agreeing with the PSC in one instance yet disagreeing
with it in another. Dakota Valley cannot have it both ways.

[¶18] Minn-Kota was aggrieved by the PSC’s decision because Otter Tail,
Minn-Kota’s preferred electric service provider, was denied a certificate of
public convenience and necessity. Additionally, Minn-Kota was aggrieved by
the PSC’s finding that Otter Tail would provide more affordable services to
Minn-Kota, yet still denying Otter Tail’s application. In essence, once the PSC
denied Otter Tail’s application, Minn-Kota lost the ability to have its facility
serviced with more affordable electric service by its preferred service provider.
This rendered Minn-Kota factually aggrieved.

[¶19] However, the fact that Minn-Kota was aggrieved by the PSC’s decision
does not in itself make the PSC’s decision erroneous. An administrative agency
may make a rational decision in which one of the parties bound by that decision
is aggrieved. The PSC made its determination based on public convenience and
necessity, not just that of Minn-Kota. In doing so, the PSC weighed ten factors.
Two of the factors considered by the PSC factually aggrieved Minn-Kota.
Nonetheless, the PSC determined all the factors, taken together as a whole,
weighed against granting Otter Tail a certificate of public convenience and
necessity. Minn-Kota need not be aggrieved by all ten factors or the PSC’s
decision as a whole to be factually aggrieved for purposes of standing. It is

                                       7
immaterial how slight or substantial the aggrievance is for a party to be
aggrieved. Minn-Kota was factually aggrieved by the PSC’s decision.

                                       C

[¶20] Both Dakota Valley and the PSC argue, and the district court
determined, the “Appearance by Customer” submitted by Minn-Kota and the
testimony offered at the hearing by Schuler, a Minn-Kota representative, was
inadequate participation in the proceedings to be considered a party.
Additionally, Dakota Valley and the PSC argue Minn-Kota cannot be
considered a party because it was not represented by legal counsel during the
administrative proceedings. We conclude Minn-Kota adequately participated
in the proceedings.

[¶21] This Court has never explicitly stated in what manner or to what extent
a person must participate to satisfy the participation element of the Bank of
Rhame standing test. But a review of our cases indicates that so long as the
party appealing has a significant or unique stake in the outcome, minimal
participation is sufficient to have adequately participated. A party need not
have been named as a party or have actively engaged in the proceedings to
have participated. See Moody, 2000 ND 136, ¶ 18, 613 N.W.2d 503 (holding
North Dakota Securities Commissioner participated when he was treated as a
party throughout the proceedings); Shark, 545 N.W.2d at 198-99 (holding
telephone company customer did not participate by sending an informal pre-
hearing letter to a single PSC commissioner in which he stated no position on
the matter); Washburn Pub. Sch. Dist. No. 4, 338 N.W.2d at 667 (holding school
district participated in proceedings when president of school board was present
at the hearing where petitioners presented their arguments); O’Connor v. N.
States Power Co., 308 N.W.2d 365, 371 (N.D. 1981) (holding rate payers did not
have standing when they were not involved with proceedings before the PSC);
Bank of Neche, 238 N.W.2d at 659 (holding competing bank had standing to
appeal granting of application even though it did not participate in proceedings
relating to application); Bank of Rhame, 231 N.W.2d at 804 (holding competitor
bank had standing when it appeared through counsel at application hearing);
see also Eckre v. Pub. Serv. Comm’n, 247 N.W.2d 656, 662 (N.D. 1976) (holding

                                       8
landowners who had not participated in proceedings had standing to challenge
PSC decision by writ of mandamus).

[¶22] The “Appearance by Customer” was voluntarily submitted by Minn-
Kota. The document clearly advocated for Minn-Kota’s position on the matter
by asking that the PSC grant Otter Tail’s application and issue a certificate of
public convenience and necessity. Voluntarily submitting such a document into
the record is an action regularly taken by a party to an adversarial proceeding
and is not one taken by a person who does not wish to, in at least some manner,
participate in the proceedings.

[¶23] Schuler’s testimony was not similar to that offered by a typical witness.
Schuler was not subpoenaed and was under no obligation to testify. When
asked why he voluntarily chose to testify, Schuler stated, “I heard about the
situation and, I mean, we saw the figures and, you know, it—I felt it was
necessary to come out here and have you guys hear me and what my thoughts
were.” Moreover, Schuler’s testimony was not limited to the technical figures
or plan of the project. Schuler clearly advocated for a certain result—that Otter
Tail’s application be granted.

[¶24] Besides formally intervening and calling its own witnesses and
submitting its own evidence, Minn-Kota could have done little, if anything, to
have more actively participated in the proceedings. It was not unreasonable
for Minn-Kota to rely on Otter Tail to prudently present evidence supporting
Minn-Kota’s position to the PSC so that the PSC could make an informed
decision.

[¶25] Minn-Kota’s unique personal stake in the outcome of the proceedings
also gives Minn-Kota standing to appeal. If Minn-Kota did not have standing,
it would be subjected to Otter Tail’s willingness to appeal or not appeal the
PSC’s decision. Minn-Kota would also be forced to rely on Otter Tail to
competently litigate the matter. Minn-Kota, not Otter Tail, is in a better
position to appeal given it is the sole customer to whom electric service would
be provided. See In re Otter Tail Power Co., 451 N.W.2d 95, 97 (N.D. 1990).
Denying Minn-Kota the ability to appeal would effectively leave Minn-Kota

                                       9
without a remedy. Such a result would be unjustifiable provided Minn-Kota is
the sole reason for Otter Tail’s application in the first place.

[¶26] Moreover, the PSC’s and Dakota Valley’s argument that Minn-Kota
must participate through legal counsel is without merit. The PSC cites Wetzel
v. Schlenvogt, 2005 ND 190, ¶¶ 11-13, 705 N.W.2d 836, and Blume Constr.,
Inc. v. State ex rel. Job Serv. N.D., 2015 ND 285, ¶ 21, 872 N.W.2d 312, in
support of this argument. Wetzel and Blume relate to court proceedings and
who is authorized to practice law under N.D.C.C. § 27-11-01. Section 27-11-01
provides who is eligible to practice law “in any court of record of this state.”
Minn-Kota and its representative appeared in an administrative proceeding,
not a court of record. Wetzel and Blume, and the underlying statute in which
they are premised on, relate to an entirely different subject matter and in no
way relate to or are persuasive in this case. Rather, the PSC cites the correct
authority for determining who may appear on behalf of a corporation in any
proceeding before the PSC—N.D.A.C. § 69-02-01-05. Under § 69-02-01-05, “an
officer or authorized employee of a corporation” may appear. Adopting the
PSC’s and Dakota Valley’s argument—that a corporation must participate in
the proceedings through an attorney to obtain standing—would lead to an
absurd result. Minn-Kota did not need to be represented by legal counsel in
the administrative proceedings for standing purposes.

[¶27] Minn-Kota is not merely a nominal party and is aggrieved by the PSC’s
decision. Any doubt on whether Minn-Kota has standing should be resolved in
favor of Minn-Kota. Barring Minn-Kota’s appeal on standing grounds would
place a narrow or limited construction on who may be a party for purposes of
appeal or review, which we have long held goes against basic principles of
standing. Minn-Kota satisfied all three elements of the Bank of Rhame test
and has standing to appeal the PSC’s decision. We reverse the district court’s
determination that Minn-Kota lacks standing.

                                      III

[¶28] We have explained our standard for reviewing a decision by the PSC
granting or denying a certificate of public convenience and necessity:

                                      10
            An appeal from a Commission decision is governed by the
      Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Capital
      Elec. Coop., Inc. v. City of Bismarck, 2007 ND 128, ¶ 30, 736
      N.W.2d 788. As relevant to this appeal, a district court must affirm
      a Commission order under N.D.C.C. § 28-32-46, unless:

            1. The order is not in accordance with the law.
            ....

            5. The findings of fact made by the agency are not supported
            by a preponderance of the evidence.

            6. The conclusions of law and order of the agency are not
            supported by its findings of fact.

            7. The findings of fact made by the agency do not sufficiently
            address the evidence presented to the agency by the
            appellant.

             In an appeal to this Court from a district court’s decision on
      an appeal from a Commission decision, we review the
      Commission’s order in the same manner as the district
      court. See N.D.C.C. § 28-32-49. The Commission’s decision on
      questions of law is fully reviewable. Capital Elec. Coop., 2007 ND
      128, ¶ 31, 736 N.W.2d 788. In reviewing the Commission’s findings
      of fact, however, we do not substitute our judgment for that of the
      Commission or make independent findings. Id. See Power Fuels,
      Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D. 1979) [“In construing the
      ‘preponderance of the evidence’ standard to permit us to apply the
      weight-of-the-evidence test to the factual findings of an
      administrative agency, we do not make independent findings of
      fact or substitute our judgment for that of the agency.”]. Rather, in
      reviewing the Commission’s findings of fact, “‘[w]e determine only
      whether a reasoning mind reasonably could have determined that
      the factual conclusions reached were proved by the weight of the
      evidence from the entire record.’” Capital Elec. Coop., at ¶ 31
      (quoting Power Fuels, at 220).

Capital Elec. Coop., Inc. v. N.D. Pub. Serv. Comm’n, 2016 ND 73, ¶ 6, 877
N.W.2d 304 (quoting N. Cent. Elec. Coop., Inc. v. N.D. Pub. Serv. Comm’n, 2013
ND 158, ¶¶ 6-7, 837 N.W.2d 138). Additionally, “[a]gency expertise is entitled

                                       11
to appreciable deference if the subject matter is highly technical.” Cass Cty.
Elec. Coop., Inc. v. N. States Power Co., 518 N.W.2d 216, 220 (N.D. 1994) (citing
True v. Heitkamp, 470 N.W.2d 582 (N.D. 1991)).

[¶29] Minn-Kota argues the PSC’s findings that Dakota Valley would provide
reliable electric service, Dakota Valley serves more customers within at least
a two-mile radius, and Otter Tail’s proposal would be a wasteful duplication of
services are not supported by the evidence.

                                        A

[¶30] The PSC found:

      Otter Tail’s proposal to serve Minn-Kota’s large motor load on a
      dedicated circuit from a dedicated substation it will have to
      construct may offer a higher level of reliability. However, the
      Commission finds that both Otter Tail and Dakota Valley would
      provide reliable service to Minn-Kota.

The record supports the PSC’s finding that Otter Tail’s proposal of building a
substation adjacent to the Minn-Kota facility would be more reliable than
Dakota Valley’s proposal. This is because the substation would be on the
facility’s premises and it would only serve the Minn-Kota facility. Therefore,
repair service would be quicker and easier if an electricity outage were to occur.

[¶31] However, the record also indicates Dakota Valley can reliably provide
electricity to the facility through its existing systems and infrastructure.
Dakota Valley’s ability to provide reliable electric service is not negated by the
PSC’s finding that Otter Tail’s proposal may be more reliable. Considering the
differences in reliability between two potential providers does not require the
PSC grant a certificate of public convenience to an applicant who would provide
more reliable service when there is ample evidence that the party opposing the
application can also provide reliable service. These are precisely the
circumstances here. The PSC’s finding that both Otter Tail and Dakota Valley
can provide reliable service is supported by a preponderance of the evidence in
the record.

                                       12
                                        B

[¶32] The PSC found Otter Tail served two customers within a two-mile radius
of the Minn-Kota site, while Dakota Valley served approximately eighteen
customers within a two-mile radius. Minn-Kota argues the two-mile radius
was an arbitrary cutoff, and the PSC should have taken into consideration the
number of customers served by Otter Tail in the larger region. A review of the
record does show that Otter Tail serves more customers within a four-mile
radius of the facility, but this is because a four-mile radius would include the
municipalities of Barney and Mooreton, which are both within Otter Tail’s
service territory.

[¶33] In Capital Electric Cooperative, Inc. v. North Dakota Public Service
Commission, we stated, “the number of customers served by electric suppliers
in the larger vicinity should be considered for assessing capacity requirements
in determining the orderly development of electrical service.” 2016 ND 73, ¶
12, 877 N.W.2d 304. However, in Capital Electric we did not consider the
number of customers beyond a two-mile radius. See id. at ¶ 11. Rather, we
emphasized the number of customers in the larger area should be examined to
ensure there is no wasteful duplication of services. See id. at ¶ 12. Construction
of additional infrastructure by one party to service a single customer when the
opposing party has existing infrastructure in place that services multiple
existing customers, and that can be easily modified or upgraded to provide
service, can be a wasteful duplication of services. See id. at ¶ 15.

[¶34] The record shows Dakota Valley serves more rural customers in the
vicinity of the Minn-Kota facility, and Otter Tail serves more customers in the
municipalities of Barney and Mooreton. For Otter Tail to extend electricity to
the rural area where the Minn-Kota facility is located, it would have to
construct substantial additional infrastructure. Dakota Valley already has
similar infrastructure in place that can be easily modified to satisfy Minn-
Kota’s needs. The PSC’s finding that Dakota Valley serves more customers
within a two-mile radius is supported by a preponderance of the evidence in
the record. Refusing to consider the number of customers beyond a two-mile

                                       13
radius is not erroneous provided with the fact that such a consideration would
support a wasteful duplication of services.

                                         C

[¶35] With regard to wasteful duplication of services, the PSC found:

      43. Service by Otter Tail to the Minn-Kota facility would require
      construction of a new substation while the existing Mooreton
      substation is fully capable of serving the facility.

      44. Dakota Valley, and Central Power Electric Cooperative,
      have made investments in the Mooreton substation and associated
      distribution facilities to serve the general area. Approval of Otter
      Tail’s application to serve the Minn-Kota facility would result in
      wasteful duplication of service and investment.

[¶36] Any duplication is not necessarily wasteful duplication. See N. States
Power Co. v. N.D. Pub. Serv. Comm’n, 452 N.W.2d 340, 344 (N.D. 1990).
Whether construction of a facility is duplicative or wasteful is one of fact for
the PSC to decide. Id. at 345. This Court has upheld a PSC’s finding that
construction of a new facility would be wasteful when a rural electric
cooperative “had an extensive system in place for the annexed territory, and .
. . extension of electric service into [this territory by an electric public utility]
would constitute an unreasonable duplication of the facilities and services
provided by [the cooperative] in the area.” Id. at 344.

[¶37] Dakota Valley has recently made investments in its infrastructure that
will service the Minn-Kota facility. Otter Tail’s construction of a new
substation and extension of service would be duplicative of the facilities and
services invested in and provided by Dakota Valley in the area. The PSC’s
finding that Otter Tail’s proposal would lead to a wasteful duplication of
investment or service is supported by a preponderance of the evidence in the
record. This finding is further supported by the PSC’s findings that Dakota
Valley serves more customers within a two-mile radius, and Dakota Valley
would best serve orderly and economic development of electric service in the
general area.

                                         14
[¶38] Under our deferential standard of review of agency decisions, we
conclude a reasoning mind could have determined the factual conclusions
reached by the PSC were supported by the weight of the evidence from the
entire record. We do not reweigh or reevaluate the evidence that was presented
at the PSC hearing, and we do not function as a super board and second guess
the PSC’s findings. We conclude the PSC’s decision is supported by a
preponderance of the evidence, and we affirm the PSC’s Findings of Fact,
Conclusions of Law and Order.

                                      IV

[¶39] In the alternative, Minn-Kota argues it should be allowed to intervene
and submit new evidence into the record for the PSC’s consideration. We
review an ALJ’s decision under the same standard of review as we review an
agency’s decision. In re Juran and Moody, Inc., 2000 ND 136, ¶ 22, 613 N.W.2d
503. We give deference to an ALJ’s findings of fact and review an ALJ’s legal
conclusions under a de novo standard of review. Id. at ¶¶ 23-24. We apply a
similar standard when reviewing whether a party may intervene under
N.D.R.Civ.P. 24(a). See Eichhorn v. Waldo Twp. Bd. of Supervisors, 2006 ND
214, ¶ 13, 723 N.W.2d 112 (applying a clearly erroneous standard for findings
of fact and a de novo standard for the ultimate question of whether a party has
a right to intervene).

[¶40] Under N.D.C.C. § 28-32-28:

      An administrative agency may grant intervention in an
      adjudicative proceeding to promote the interests of justice if
      intervention will not impair the orderly and prompt conduct of the
      proceeding and if the petitioning intervenor demonstrates that the
      petitioner’s legal rights, duties, privileges, immunities, or other
      legal interests may be substantially affected by the proceeding or
      that the petitioner qualifies as an intervenor under any provision
      of statute or rule. . . . An administrative agency may adopt rules
      relating to intervention in an adjudicative proceeding.

Under § 28-32-28, the PSC adopted the following rule for intervention in a
proceeding before the agency:

                                      15
     Any person with a substantial interest in a proceeding may
     petition to intervene . . . . An intervention may be granted if the
     petitioner has a statutory right to be a party to the proceeding; or
     the petitioner has a legal interest which may be substantially
     affected by the proceeding, and the intervention would not unduly
     broaden the issues or delay the proceeding.

     ....

     A petition to intervene in any proceeding must be filed at least ten
     days prior to the hearing, but not after except for good cause shown.

N.D.A.C. § 69-02-02-05 (emphasis added).

[¶41] In civil legal proceedings, N.D.R.Civ.P. 24 allows for intervention “on
timely motion.” Intervention has historically been liberally granted in North
Dakota. Eichhorn, 2006 ND 214, ¶ 13, 723 N.W.2d 112. Even though liberally
granted, post-judgment intervention is “‘unusual and not often granted.’”
Brigham Oil & Gas, L.P. v. Lario Oil & Gas Co., 2011 ND 154, ¶ 40, 801
N.W.2d 677 (quoting Quick v. Fischer, 417 N.W.2d 843, 845 (N.D. 1988)).
Certain considerations must be taken into account in deciding whether to grant
a post-judgment motion for intervention:

            The most important consideration in deciding whether a
     motion for intervention is untimely is whether the delay in moving
     for intervention will prejudice the existing parties to the case. If
     prejudice is found, the motion will be denied as untimely.
     Conversely, the absence of prejudice supports finding the motion
     to be timely . . . . Delay is not the only possible form of prejudice to
     the existing parties, but if the intervention will not delay the
     termination of the litigation intervention ordinarily will be
     allowed.

Brigham Oil & Gas, at ¶ 40.

[¶42] Unlike N.D.R.Civ.P. 24, N.D.A.C. § 69-02-02-05 provides an explicit time
frame for seeking to intervene—at least 10 days prior to the hearing. However,
if a potential intervenor shows good cause, intervention may be allowed after
the 10 day deadline. We note here that a showing of good cause under N.D.A.C.

                                       16
§ 69-02-02-05(2) should not be interpreted to mean a showing of good cause for
the delay in petitioning to intervene. Rather, “good cause” should be
interpreted to mean a showing of good cause as to why a petitioning intervenor
should be allowed to intervene late under the circumstances.

[¶43] We have never stated what constitutes “good cause” under N.D.A.C. §
69-02-02-05. But our cases on post-judgment intervention under N.D.R.Civ.P.
24 are analogous and provide guidance on what may constitute “good cause.”

[¶44] This Court has granted post-judgment intervention to protect legal and
property interests. See, e.g., Quick, 417 N.W.2d at 845. On the other hand, we
have denied intervention sought months after judgment was entered when the
petitioning party had notice of the proceedings, was present at court hearings,
gave no explanation for the delay in seeking intervention, and was attempting
to relitigate issues resolved in the main action rather than raising important
policy issues. Brigham Oil & Gas, 2011 ND 154, ¶ 42, 801 N.W.2d 677. Under
such circumstances, allowing intervention would have interfered with the
orderly processes of the court, would have required withdrawal of the appeal,
relitigation of the issues, and caused other expensive delays to the existing
parties. Id.

[¶45] Minn-Kota filed its petition to intervene on February 1, 2018—over 100
days after the October, 2017, hearing on Otter Tail’s application. Minn-Kota
did not give a reason for the delay, other than Minn-Kota felt it “had a unique
perspective on these and other issues before the Commission, and because
Minn-Kota no longer felt that its interest in the issuance of the certificate was
sufficiently aligned with or adequately represented by Otter Tail’s appearance
before the Commission . . . .” Minn-Kota argued it had shown good cause
because it had a “substantial interest” in the outcome of the proceedings and
because it would be “substantially affected” by the PSC’s decision. The ALJ
denied Minn-Kota’s petition to intervene finding Minn-Kota’s and Otter Tail’s
interests were sufficiently aligned, Minn-Kota and Otter Tail had made many
of the same arguments throughout the proceedings, Minn-Kota’s interests had
been adequately represented by Otter Tail and by Minn-Kota’s representative
who testified at the October hearing, and the issues had been substantially and

                                       17
thoroughly laid out for the PSC to make a reasoned and intelligent decision.
Moreover, the ALJ concluded Minn-Kota did not show good cause as to why it
should be allowed to intervene.

[¶46] Even though intervention is liberally granted, we agree with the ALJ’s
findings and conclusion that Minn-Kota did not show good cause as to why it
should be allowed to intervene late. It is certainly true that Minn-Kota’s
interests are “substantially affected” by the PSC’s decision. But Minn-Kota has
not provided a compelling argument on how Otter Tail did not adequately
represent its interests at the October hearing or throughout the entirety of the
proceedings. Minn-Kota’s readily apparent purpose for seeking to intervene
was to offer additional information to address concerns expressed by the PSC
during the December 20, 2017, work session. Otter Tail presented sufficient
information at the October hearing for the PSC to make an intelligent and
informed decision. Any additional information offered by Minn-Kota after the
December 20 work session would have been tailored to the PSC’s concerns.
Allowing a party to present evidence after it has been provided with insight on
how an agency is likely to decide would circumvent the administrative process
and the adversarial system in place for such matters. Both Dakota Valley and
the PSC would have incurred additional time and expense in rebutting and
considering additional evidence presented by Minn-Kota if it had been allowed
to intervene. This after all parties involved in the matter had already invested
significant time and expense throughout the proceedings.

[¶47] Contrary to its argument, Minn-Kota would not have been the only party
prejudiced from a delay if it had been allowed to intervene; every party to the
action would have been impacted and prejudiced by the additional time and
expense incurred. Minn-Kota has not shown good cause or that allowing it to
intervene late would promote the interests of justice. We affirm the ALJ’s
denial of Minn-Kota’s petition to intervene and the district court’s order.

                                      18
                                      V

[¶48] The district court’s order is affirmed in part and reversed in part, and
thus the order of the PSC is affirmed.

[¶49] Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Jon J. Jensen, C.J.

                                     19


623 S.W.2d 820 (1981)
Robert James COOK a/k/a James Robert Cook, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 81-60.
Supreme Court of Arkansas.
November 9, 1981.
Rehearing Denied December 14, 1981.
*821 Robert F. Andrews, Walnut Ridge, for appellant.
Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.
DUDLEY, Justice.
Appellant Robert James Cook was arrested on October 12, 1980. On October 14, he was charged with rape, kidnapping, attempted murder, being a felon in possession of a firearm and being a habitual offender. It is undisputed that over the next five days he asked five different police officers, being all that he saw, for the appointment of an attorney. Seventeen days after his arrest, on October 29, an attorney was appointed. During this period he gave an in-custodial statement. His first appearance before a judicial officer was on November 13. The appellant subsequently moved to have all charges dismissed because of this lengthy delay. The trial court correctly refused to dismiss the charges because dismissal is not the appropriate remedy.
Rule 8.1 of the Arkansas Rules of Criminal Procedure, Vol. 4A (Repl.1977), provides:
Prompt First Appearance
An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.
We adhere to our standard that this rule is mandatory, not discretionary, but that violation of it does not dictate a dismissal of the charges. Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978). This standard, like those of searches and seizures, represents a necessary accommodation between the individual's right to liberty and the State's duty to control crime. On the limited issue of dismissal, the scales are tipped in favor of the State for when the defendant is found guilty he has suffered no prejudice as a result of being in jail. The remedy is to suppress the in-custodial statement, as was done. The Supreme Court of the United States, in Gerstein v. Pugh, 420 U.S. 103 at 118, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975) stated:
In holding that the prosecutor's assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court's prior holding that a judicial hearing is not prerequisite to prosecution by information. Beck v. Washington, 369 U.S. 541, 545 [, 82 S.Ct. 955, 957-58, 8 L.Ed.2d 98] (1962); Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913). Nor do we retreat from the established rule that *822 illegal arrest or detention does not void a subsequent conviction. Frisbie v. Collins, 342 U.S. 519 [, 72 S.Ct. 509, 96 L.Ed. 541] (1952); Ker v. Illinois, 119 U.S. 436 [, 7 S.Ct. 225, 30 L.Ed. 421] (1886). [Emphasis supplied.]
We affirm the action of the trial court in denying the motion to dismiss all charges.
The case was eventually set for trial on Monday, March 9, 1981. On the preceding Friday, March 6, the prosecuting attorney conducted a parley which was termed a pretrial conference. All of the State's witnesses who were to testify at the trial attended, some voluntarily and some because they were subpoenaed by the prosecuting attorney. Ark.Stat.Ann. § 43-801 (Repl. 1977). The pretrial conference was conducted in the solemnity of the courtroom where the trial would take place the following Monday. The witnesses were placed under oath by the prosecuting attorney, § 43-801, and each then took the witness stand in front of the others. Each was told that perjury charges could flow from falsely testifying and the prosecutor then individually questioned them. Neither the trial judge nor the defense attorney knew of this pretrial conference until Martha McAlphin, the rape victim, disclosed it during the trial. From the beginning of the trial she, as well as all other witnesses, had been under "the rule," but she testified that she had heard the testimony of the other witnesses. She testified that the date of the incident was October 12, "as far as everybody has been telling me" and "they said he pointed the gun at Mr. Cook but I didn't see it; they told me that when we was in here; and they told me more or less what happened." The defense attorney at that time discovered what had happened and moved for a mistrial. It was denied and subsequently the appellant was convicted on all charges. We reverse the trial court for declining to grant a mistrial. This issue creates practical difficulties and we expressly limit this holding to the precise set of facts before us.
We agree with the reasoning of the trial court that this conference technically was not a violation of "the rule." Rule 615 Uniform Rules of Evidence, Ark.Stat.Ann. § 28-1001 (Repl.1979) provides:
Exclusion of witnesses.At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion.
The rule is only applicable during an evidentiary hearing presided over by the court and there is no requirement to sequester witnesses by either party during the investigation or preparation of a case.
The prosecuting attorney's subpoena power stems from Ark.Stat.Ann. § 43-801 (Repl.1977), which was passed by the General Assembly to implement the power of prosecutors to bring criminal charges by information. Amendment 21 to the Constitution of Arkansas. Ark.Stat.Ann. Vol. 1. For an excellent review of the history of the statute see Hall, The Prosecutor's Subpoena Power, 33 Ark.L.Rev. 122 (1979). The relevant text of the statute is as follows:
The prosecuting attorneys and their deputies shall have authority to issue subpoenas in all criminal matters they are investigating; and shall have authority to administer oaths for the purpose of taking the testimony of witnesses subpoenaed before them; such oath when administered by the prosecuting attorney or his deputy shall have the same effect as if administered by the foreman of the grand jury.
Appellant contends that the language of the statute limits the use of the subpoena power to "matters they are investigating." We do not so narrowly interpret the statute. The emergency clause states that the statute was enacted to enable prosecutors "to properly prepare criminal cases." Therefore, subpoenas may be used to bring in witnesses to interrogate them about a case under investigation as well as to review their testimony before trial but after the case has been investigated. However, in this particular case, there was an abuse of the prosecutor's subpoena power. The *823 results of this particular procedure go beyond the realm of trial preparation, they even go beyond an effective denial of "the rule." This procedure, without cross-examination, could be utilized to lead a recalcitrant witness to a desired answer in front of the others. Each would have heard the cajoled answers and each would understand the answer which the prosecuting attorney expected him or her to give. The pressure to conform could be great. The prospective witness would then give the desired answer under oath and in front of all the other witnesses. Each could then be warned of the penalty of perjury. All of this would take place immediately prior to trial and in the solemnity of the courtroom in which the case is to be tried. The result could well be that the witness would not have time to evaluate the process and then, at trial, the witness would parrot the cajoled answer. Equally as bad, this unreported procedure could serve as an effective method for a prosecutor to avoid disclosure of witnesses' statements. The abuse of the prosecutor's subpoena power in this manner could result in denying a defendant a fair and impartial trial. We do not question the good faith of the prosecutor in this particular case, but if this procedure were allowed to stand, a trial tactic would be authorized which could easily result in oppressive prosecutorial trial tactics. We disapprove of such a procedure. We conclude that the trial judge, upon learning what had happened, should have granted the motion for a mistrial and then rescheduled the case after an appropriate period of time.
Appellant makes other arguments which are not necessary to discuss for they are either without merit or not likely to recur at trial.
Reversed and remanded.