ARB CASE NO. 06-023
ALJ CASE NO. 2004-STA-12
DATE: November 30, 2006
In the Matter of:
DANIEL SOMERSON,
COMPLAINANT,
v.
EAGLE EXPRESS LINES, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE
REVIEW BOARD
Appearances:
For the Complainant:
Daniel S.
Somerson, pro se, Jacksonville, Florida
For the Respondent:
Thomas A.
Appel, Esq., Appel & Appel, Lansing, Illinois
FINAL
DECISION AND ORDER
Daniel S. Somerson complained that Eagle Express Lines, Inc. (Eagle)
violated the employee protection provisions of the Surface Transportation
Assistance Act of 1982 (STAA), as amended and recodified, 49 U.S.C.A. § 31105
(West 1997), and its implementing regulations, 29 C.F.R. Part 1978 (2006), when
it discharged him in August 2003. On December 6, 2005, a Department of Labor
(DOL) Administrative Law Judge (ALJ) recommended dismissal of Somerson’s complaint
based on his failure to participate at a pre-hearing conference, and refusal to
prosecute the case in accordance with the ALJ’s orders. Recommended Decision
and Order Dismissing Case (R. D. & O.). We affirm.
[Page 2]
Background
On
July 28, 2003, Somerson applied for a part time over the road driving position
with Eagle, which was engaged in transporting United States Mail on the
highways. Somerson contended that he was discharged for voicing concerns about
the time for a run in relation to the federal regulation limiting the number of
duty hours and Eagle’s knowledge of his web site on trucker safety. Letter
from Area Director, Occupational Safety & Health Administration (OSHA), to
Somerson, November 13, 2003. However, Eagle claimed it refused Somerson
employment because he lied on his application and he was verbally abusive to
its director of safety and compliance. Id. OSHA denied Somerson’s
complaint, id., and he then requested an evidentiary hearing before an
ALJ.
Although
counsel initially represented Somerson, the Office of Administrative Law Judges
(OALJ) stayed Somerson’s case while the OALJ sought to remove his counsel from representing
any complainants before the Department of Labor’s administrative law judges. In
the Matter of the Qualifications of Edward A. Slavin, Jr., ALJ No.
2004-MIS-2 and 2004-STA-12 (ALJ Mar. 31, 2004) (Order Denying Authority to
Appear), aff’d, ARB No. 04-088 (Apr. 29, 2005). The assigned ALJ
afforded Somerson time to obtain new counsel, and on August 23, 2005, he
scheduled a pre-hearing teleconference for Tuesday, September 6, 2005, before
which the parties were ordered to exchange exhibits and other pre-hearing
submissions. R. D. & O. at 2.
Somerson
knew about the conference call, and related pre-hearing obligations, but he
refused to participate. The ALJ cancelled the evidentiary hearing, and issued
an order for Somerson to show cause why his case should not be dismissed “for
failure to participate in the scheduled pre-hearing conference, for failure to
follow the order from the judge, and for failure to prosecute this case.” R.
D. & O. at 3. In response, Somerson claimed that a federal judge had ordered
that he not set foot in a federal courtroom or use the mails; that he was
unable to obtain counsel; and that the ALJ should rule on motions for summary
judgment that his former counsel previously filed. R. D. & O. at 3-4.
The
ALJ cited his authority to enter a default judgment against a party for failure
to appear at a properly noticed hearing without good cause, 29 C.F.R. § 18.5(b)
and § 18.39(b) (2006); to render a decision against a party who fails to comply
with an order of an ALJ, 29 C.F.R. § 18.6(d)(2)(v); and to take actions
necessary to conduct fair and impartial hearings, 29 C.F.R. § 18.29(a)(1-9). R.
D. & O. at 4-5.
Applying
those authorities to the case before him, the ALJ found that Somerson was aware
of the pre-hearing conference, but chose not to participate, which the ALJ
concluded “demonstrated[d] an egregious disregard for this judicial process and
unacceptable disrespect for the other participants in this process.” Id. at 5.
With
regard to Somerson’s contention that a federal judge had ordered him not to set
foot in a federal courtroom or use the mails, the ALJ reviewed that court’s
order, which stemmed from Somerson’s “inappropriate conduct during the course
of a previous
[Page 3]
lawsuit before the OALJ.” Id. at 5. The consent
order required that Somerson “conduct himself within the bounds of
appropriate respect and decorum.” Id. at 5. When Somerson
was found in violation, the federal judge imposed the additional requirement
that Somerson obtain leave of the court before filing any new claim in that
federal district. Id. at 5-6. As Somerson had been instructed
prior to the pre-hearing conference, the federal judge’s order did not restrict
his participation or excuse his non-participation in Somerson’s STAA case
before the ALJ. Id. at 2, 5-6.
Finally,
with respect to Somerson’s claim that, rather than conduct an evidentiary
hearing, the ALJ should rule on motions for summary judgment that his former
counsel previously filed, the ALJ determined that his former counsel had filed
no such motions. Although Somerson’s counsel had filed “numerous motions”
during his participation in the case, none were for summary judgment (summary
decision); and so Somerson’s request “cannot help him establish good cause why
his case should not be dismissed for failure to participate in the scheduled
pre-hearing conference, failure to follow [the ALJ’s order], and the failure to
prosecute this case.” Id.
Discussion
The case
is now before the ARB under the automatic review provisions of 49 U.S.C.A. §
31105(b)(2)(C) and 29 C.F.R. § 1978.109(c)(1). We issued a Notice of Review
and Briefing Schedule on December 14, 2005. Neither Somerson nor Eagle has
elected to file a brief.
The Secretary of
Labor has delegated her jurisdiction to decide this matter by authority of 49
U.S.C.A. § 31105(b)(2)(C) to the Board. See Secretary’s Order 1-2002,
67 Fed. Reg. 64,272 (Oct. 17, 2002). See also 29 C.F.R. § 1978.109(c).
When reviewing
STAA cases, the ARB is bound by the ALJ’s factual findings if those findings
are supported by substantial evidence on the record considered as a whole. 29
C.F.R. § 1978.109(c)(3); BSP Trans, Inc. v. United States Dep’t of Labor,
160 F.3d 38, 46 (1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich,
55 F.3d 41, 44 (2d Cir. 1995). The Board reviews the ALJ’s legal conclusions
de novo. See Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th
Cir. 1991).
We have observed
that “the Department of Labor’s Administrative Law Judges and this Board must
necessarily manage their dockets in an effort to achieve the orderly and expeditious
disposition of cases. Thus, the Board will affirm an ALJ’s recommended decision
and order on the grounds of abandonment, where the facts dictate that a party has
failed to prosecute his or her case.” Larue v. Kllm Transport, Inc.,
ARB No. 02-024, ALJ No. 01-STA-54, slip op. at 2 (ARB July 22, 2003)
(quotations and citations omitted). We have reviewed the record in this matter
and conclude that the ALJ correctly applied the law to the facts. It is clear
that, by failing and refusing to obey the ALJ’s orders, by not demonstrating
good cause, and by failing to brief arguments before us, Somerson has abandoned
his right to pursue his STAA claim.
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Therefore, for
the reasons stated in the R. D. & O., and summarized here, we DISMISS
Somerson’s complaint.
SO ORDERED.
WAYNE C. BEYER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
