DATE:  March 17, 1995
CASE NO. 94-STA-29

IN THE MATTER OF

MARC R. ALLEN,
          COMPLAINANT,

     v.

HUBBARD TRUCKING, INC,
          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                            ORDER TO SHOW CAUSE

     On November 1, 1994, the Administrative Law Judge (ALJ)
issued a Recommended Order in this case arising under the
employee protection provision of the Surface Transportation
Assistance Act of 1982 (STAA), 49 U.S.C.A. § 31105 (West
1994).  Citing Complainant's failure to comply with
administrative orders and his failure to prosecute his claim, the
ALJ recommends dismissal pursuant to 29 C.F.R. § 18.29(a)(8)
(1994) and Rule 41(b) of the Federal Rules of Civil Procedure. 
Although I disagree with the ALJ's reliance on the federal rules
as authority in this case, I agree that dismissal may be
appropriate under 29 C.F.R. § 18.6(d)(2)(v).
                                BACKGROUND
     The Assistant Secretary issued preliminary findings in favor
of Complainant.  Respondent objected to the finding that it
violated the STAA, and Complainant objected to the order of
relief.  Complainant's counsel withdrew after filing the
objection.  At Complainant's request, the ALJ granted a
continuance of the hearing until August 31, 1994, and extended
Complainant's time for complying with several pre-hearing orders. 
Shortly after the ALJ's order granting a continuance, counsel for
[PAGE 2]
the Assistant Secretary filed a statement declining to prosecute
the case.  Complainant then failed to respond to the pre-hearing
orders and Respondent moved to dismiss.  The ALJ ordered
Complainant to show cause why the complaint should not be
dismissed for his failure to comply or communicate.  On 
August 26, 1994, Complainant replied that in the absence of
counsel, he had become discouraged and overwhelmed by the legal
process.  He requested a continuance until November.
     The ALJ acknowledged that dismissal is a severe sanction,
and to preclude any possibility of misunderstanding, the ALJ
provided Complainant a final opportunity to comply with the pre-
hearing orders.  See Decision and Order on Response to
Show Cause, dated September 14, 1995, at page 3.  The ALJ
forwarded copies of her September 14 order to Complainant by both
certified and regular mail.  Both letters were addressed to the
correct post office box, but at an incorrect zip code.  The
regular mailing was "returned to sender," specifically because of
the incorrect zip code.  The certified mailing was returned to
the ALJ, after attempted delivery, unclaimed.  The ALJ found that
the certified mailing was received at the correct post office but
was neglected by Complainant, and she, therefore, concluded that
dismissal was warranted.
                                DISCUSSION
     Applicable regulations specifically provide that an ALJ may
dismiss a STAA complaint upon the failure of the complainant to
comply with a lawful order.  29 C.F.R. § 18.6(d)(2)(v);
White v. "Q" Trucking Co., Case No. 93-STA-28, Sec. Order,
Dec. 2, 1994, slip op. at 2.  Since Section 18.6 provides the
appropriate sanction for noncompliance, the federal rules do not
apply.  Asst. Sec. and Walters v. Karmichael Tank Service,
Case No. 90-STA-12, Jan. 22, 1991, slip op. at 3.  After considering the
particular circumstances of this case, including Complainant's
pro se status and the timing of the decision made
by counsel for the Assistant Secretary, I agree with the ALJ's
September 14 ruling to provide Complainant one last opportunity
to comply with the pre-hearing order prior to dismissal. 
Furthermore, if receipt of that September 14 order was willfully
refused or neglected by Complainant, then I also would agree that
this case should now be dismissed, albeit pursuant to Section
18.6(d)(2)(v).  White, slip op. at 2; Cohen v. Roberts
Express, Case No. 91-STA-29, Sec. Order, Feb. 11, 1992, slip
op. at 2.
     Despite the ALJ's finding to the contrary, this record does
not document that the certified mailing of the September 14 order
was received at the correct post office, and I will not just
assume that it was properly routed.  The order was not mailed to
Complainant at his "last known address," as required by 29 C.F.R.
§ 18.3(c), due to the incorrectly addressed zip code. 
See 
[PAGE 3]
Complainant's response letter, filed August 26, 1994, at page 2;
Affidavit of Marc R. Allen, dated June 15, 1994.  As a result,
the order may have been misdirected and Complainant may have been
deprived of his final opportunity to respond.  See
Miriello v. Carolina Power and Light Co., Case No. 87-ERA-
17, Sec. Order, Jan. 23, 1992, slip op. at 10.
                                   ORDER
     Accordingly, to ensure a fair opportunity for response, this
order, with the ALJ's recommended decision attached, is served by
certified mail to the last known address of the parties.  The
parties may show cause within ten days of receipt hereof why this
case should not be dismissed in accordance with the ALJ's
recommended decision as corrected above.  If cause is shown the
case shall be remanded to the ALJ for further proceedings.  If no
cause is shown, within ten days as indicated, an order will be
issued dismissing the case pursuant to Section 18.6(d)(2)(v).
     Filings shall be submitted to the Office of Administrative
Appeals, U.S. Department of Labor, 200 Constitution Ave., N.W.,
Room S-4309, Washington, D.C. 20210.  Copies of filings shall be
served on all other parties and their counsel.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.