On April 29, 1999, the ALJ issued a Decision and Order Granting Partial Default Judgment (Default Judgment I), against SuperVan, Inc., finding it had failed to pay service employees minimum wages and fringe benefits as required by the Act. He assessed liability for back wages in the amount of $104,633.65 and debarred SuperVan, Inc. from federal government contracting for three years. Default Judgment I was entered against SuperVan, Inc. for failing "to respond to the Administrator's ‘First Request for Production of Documents' in violation of the [ALJ's] Orders issued on July 10, 1998 and November 24, 1998." Default Judgment I at 3. The ALJ declined to enter default against Donald S. Rullo because such action was not "warranted" at that time. Id. at 4.

   On May 11, 1999, the Administrator filed a Motion for Reconsideration of the April 29th partial default judgment order. The Administrator argued that Rullo was a "party responsible" within the meaning of the Act and that, therefore, Rullo was personally liable for the SCA violations that the ALJ had attributed to SuperVan in Default Judgment I. On July 23, 1999, the Administrator supplemented this motion with additional deposition testimony from Mario Mendiola, Supervan's general manager and vice-president. On August 18, 1999, the ALJ entered default judgment against Donald S. Rullo (Default Judgment II). In this order, the ALJ held Rullo individually liable for violations of the Act and assessed the same amount of back pay as had been imposed on SuperVan in Default Judgment I. The ALJ found that Rullo was a "party responsible" for the SCA violations and that his "failure to comply with the Orders issued on July 10, 1998, and November 24, 1998 was either due to his own conduct or due to circumstances within his control." Default Judgment II at 4. In addition, he found that the Department of Labor's ability to proceed to a formal hearing had been "adversely affected" by Rullo's non-compliance. On August 27, 1999, Respondents moved for reconsideration of the default orders. Rullo, in a letter dated August 27, 1999, to the ALJ and which was enclosed with the motion for reconsideration, explained that his failure to produce the additional documents requested by the Administrator was because Christine Rullo, his former wife, pursuant to court order, removed "all of the records relating to Special Services Transportation Inc. and SuperVan Inc." from a ranch in Texas. After the ALJ denied their Motion for Reconsideration, Respondents filed the Petition for Review on October 20, 1999.

   The Board has jurisdiction over this Petition for Review pursuant to 29 C.F.R. § 8.1(b) (2001) and Secretary's Order 2-96, 61 Fed. Reg. 19978 (May 3, 1996). The Board's review of an ALJ's decision is in the nature of an appellate proceeding. 29 C.F.R. § 8.1(d) (2001). Pursuant to 29 C.F.R. § 8.9(b), the Board shall modify and set aside an ALJ's findings of fact only when it determines that those findings are not supported by a preponderance of the evidence. See Dantran, Inc. v. U.S. Dept. of Labor, 171 F.3d 58, 71 (1st Cir. 1999). However, conclusions of law are reviewed de novo. United Kleenist Organization Corp. and Young Park, ARB No. 00-042, ALJ No. 99-SCA-18 slip op. at 5. (ARB Jan. 25, 2002).

   Department of Labor regulations further circumscribe our jurisdiction in matters such as this:

[U]nless the petition for review [cites] alleged procedural irregularities in the proceeding below and not the merits of a case, the Board shall not consider a petition for review filed by any party against whom default judgment has been entered pursuant to the provisions of [29 C.F.R. Part 6].

29 C.F.R. § 8.1(d).

   1. Whether the Petition for Review cites alleged procedural irregularities in the proceeding below and should, therefore, be considered.

   2. Whether the ALJ acted within his discretion in entering default judgments against SuperVan, Inc. and Donald S. Rullo.

1. The Board will consider the Petition for Review since it cites alleged procedural irregularities in the proceedings below.

   We note that the Petition for Review primarily recites issues pertaining to the merits of the Respondents' case. However, it also alleges a denial of "due process" and claims that the proceeding "was delayed time and again" by the Department of Labor. Petition for Review at 1. The Board finds that these allegations, though vague, sufficiently refer to alleged procedural irregularities to warrant consideration of the Petition. We therefore conclude that consideration of the Petition For Review is appropriate.

2. The ALJ acted within his discretion in entering default judgment against Super Van and Donald S. Rullo.

    A. Default Judgment I

   We have noted that on April 29, 1999, the ALJ entered a default judgment against SuperVan but did not default Donald S. Rullo at that time. The ALJ predicated Default Judgment I on SuperVan's failure "to participate in this matter" in that it did not "respond to the ‘Department's First Request for Production of Documents' in violation of the [ALJ's] Orders issued on July 10, 1998, and November 24, 1998." This Board concludes that entry of default judgment against SuperVan was within the ALJ's discretion.

   The Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges apply to SCA enforcement proceedings. See 29 C.F.R. § 18.1(a); 29 C.F.R. Subtitle A, Part 6, Subtitle B. These rules, in pertinent part, provide that:

If a party or an officer or agent of a party fails to comply with . . . an order, including, but not limited to, . . . the production of documents, or the answering of interrogatories . . ., the administrative law judge, for the purpose of permitting resolution of the relevant issues and disposition of the proceeding without unnecessary delay despite such failure, may take such action in regard thereto as is just, including but not limited to the following:

* * *

Rule that a pleading, or part of a pleading, or a motion or other submission by the non-complying party, concerning which the order or subpoena was issued, be stricken or that a decision of the proceeding be rendered against the non-complying party, or both.

   The record herein clearly supports the ALJ's finding that SuperVan did not comply with the Administrator's discovery requests and the ALJ's July 10 and November 24, 1998 Orders. 29 C.F.R. § 18.6(d)(2)(v), cited above, authorizes the ALJ to issue default judgments and his decision to do so was within his discretion. The ALJ recognized that entry of default judgment was a "severe sanction" and that it is "generally reserved for repeat violations of discovery requests or orders." (Default Judgment I at 3). Since SuperVan, Inc. repeatedly failed to comply with the discovery request and the ALJ's orders, default was appropriate.

   We find that the factual backgrounds of Tri-Way Security and Escort Service, Inc., BSCA No. 92-05 (July 31, 1992) and Cynthia E. Aiken, BSCA No. 92-06 (July 31, 1992) are similar to the facts here. In both Tri-Way and Aiken the Respondents not only failed to answer a prehearing statement, as ordered, but also failed to respond to an order to show cause which, in both cases, advised them default would result if they did not respond. Although the ALJ here did not issue an order to show cause, we note that SuperVan was specifically notified in both the July 10 and November 24 Orders to Compel that the Department of Labor would be permitted to seek default judgment in the event of non-compliance. July 10, 1998 Order at 2; November 24, 1998 Order at 9.

   Furthermore, the Board finds that the non-compliance involved herein was equally or even more egregious than that which occurred in Tri-Way and Aiken, and we think the rationale for the decisions in both of those cases is persuasive. As the BSCA noted in Aiken, "[i]f an ALJ is to have any authority to enforce prehearing orders, and so to deter others from disregarding these orders, sanctions such as dismissals or default judgments must be available when parties flagrantly fail to comply." Id. at 4. See also Tri-Way at 3-4. The Aiken rationale must be applied to all situations involving flagrant non-compliance with discovery requests and orders. To hold otherwise would render the discovery process meaningless and vitiate an ALJ's duty to conclude cases fairly and expeditiously.

   B. Default Judgment II

   The ALJ declined to enter judgment against Donald S. Rullo, individually, on April 29, 1999 (Default Judgment I) because it was "not warranted," that is, the Administrator had not rebutted Rullo's assertions that he did not have possession or control of the requested SuperVan documents and that SuperVan's general manager and vice-president Mario Mendiola, not Rullo, was responsible for and managed the SuperVan operation. Default Judgment I at 5. In short, the ALJ held that Rullo was not the "party responsible" for the SuperVan violations of the SCA. See 41 U.S.C.A. § 352 and discussion below. Furthermore, relying upon Marshall v. Segona, 621 F.2d 763, 768 (5th Cir. 1980) and Dorsey v. Academy Moving and Storage, Inc., 423 F.2d 858, 859-62 (5th Cir. 1970), the ALJ determined that Rullo's noncompliance with the production requests and orders "was due to his inability to comply, and was not done in bad faith nor callous disregard." Therefore, the ALJ denied default as to Rullo, at that time. Default Judgment I at 5.

   On May 11, 1999, the Administrator filed a Motion to Reconsider Default wherein he urged the ALJ to examine new evidence. Exhibit A to the Motion to Reconsider consists of portions of a deposition of Mendiola. Exhibit B to the Motion to Reconsider is a copy of the Concessionaire Contract between SST and Lackland Air Force Base, dated July 31, 1992, and signed by Donald S. Rullo. On July 23, 1999, the Administrator supplemented the Motion to Reconsider Default with additional deposition testimony from Mendiola. The Administrator's Motion requested that the ALJ find that Rullo was a "party responsible" for the alleged SCA violations and that he be held personally liable for the violations attributed to SuperVan, Inc. in Default Judgment I. The Administrator also requested that Rullo be debarred. Motion to Reconsider Default at 1-2.

   On August 18, 1999, the ALJ issued Default Judgment II and found Donald S. Rullo liable for $104,633.65 in back wages owed to the service employees who performed the Lackland contracts. He ordered Rullo to pay that amount to the U.S. Department of Labor for disbursement to the employees. He also ordered that Rullo be debarred according to the conditions and procedures set out in 41 U.S.C.A. § 354 and found that there were no unusual circumstances to warrant relief from debarment. The Administrator's argument and Mendiola's deposition testimony had persuaded the ALJ to conclude that Rullo was the "party responsible," and, in effect, Rullo could no longer assert that

circumstances beyond his control had prevented him from producing the documents. Therefore, since the ALJ had already found that SuperVan, Inc. had "failed to and refused to pay service employees the minimum monetary wages and fringe benefits as required by the contracts, the SCA, and the regulations"(Default Judgment I at 4), Rullo, as the "party responsible," was personally liable for these violations. The Act provides:

Any violation of the contract stipulations required by section 351(a)(1) or (2) [the required provisions in a SCA contract relating to the wages and the fringe benefits to be furnished] or of section 351(b) [the contractor shall not pay employees less than the minimum wage] of this title shall render the party responsible therefore liable for a sum equal to the amount of any deductions, rebates, refunds, or underpayment of compensation due to any employee engaged in the performance of such contract.

41 U.S.C.A. § 352 (emphasis added). The regulations implementing the Act describe the term "party responsible."

An officer of a corporation who actively directs and supervises the contract performance, including employment policies and practices and the work of the employees working on the contract, is a party responsible and liable for the violations, individually and jointly with the company. … Accordingly, it has been held by administrative decisions and by the courts that the term party responsible, as used in section 3(a) of the Act, imposes personal liability for violations of any of the contract stipulations required by … the Act on corporate officers who control, or are responsible for control of, the corporate entity… .

29 C.F.R. § 4.187(e)(1), (2).

   The ALJ's finding and conclusion that Rullo was the "party responsible" is supported by the fact that Rullo admitted that he was the "president of SuperVan, Inc." and that he "held a 95 percent interest in the company." Respondents' Answer To First Set of Interrogatories, Response No. 2. Mendiola's deposition testimony convinced the ALJ that Rullo had signed the Concessionaire Contract on behalf of SST, and that he "controlled corporate policy." Default Judgment II at 4. Furthermore, the ALJ found no evidence that Rullo had "made a good faith effort to secure the requested records," and that his failure to comply with the July 10, 1998 and November 24, 1998 Orders to Compel Discovery was, contrary to his assertions, "due to his own conduct" or to "circumstances within his control." Id. at 4.

   For the foregoing reasons, the Petition for Review is DENIED and the ALJ=s Orders of April 29, 1999, entering default judgment against SuperVan, Inc. and August 18, 1999, entering default judgment against Donald S. Rullo are AFFIRMED. It is hereby ORDERED that the names of SuperVan, Inc., and Donald S. Rullo, be placed on the list of persons and firms ineligible to receive Federal contracts for a period of three years. Furthermore, in the event that SST and Christine Rullo were not previously placed on the debarment list when the ALJ issued his final order as to them on August 18, 1998, (see n.1, supra), they too shall be placed on the list of persons and firms ineligible to receive government contracts for a period of three years.

   SO ORDERED.

      OLIVER M. TRANSUE
      Administrative Appeals Judge

      WAYNE C. BEYER
      Administrative Appeals Judge

      JUDITH S. BOGGS
      Administrative Apeals Judge