Steffenhagen v. Securitas Sverige, AR, 2003-SOX-24 (ALJ Aug. 5, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 2 Executive Campus, Suite 450 Cherry Hill, NJ 08002 (856) 486-3800

Issue Date: 05 August 2003

CASE NO.: 2003-SOX-00024

In the Matter of

TIMOTHY STEFFENHAGEN
    Complainant

    v.

SECURITAS SVERIGE, AR, et al.
    Respondents

   This case arises out of a complaint of discrimination filed pursuant to the employee protection provisions of Public Law 107-204, Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, codified at 18 U.S.C. section 1514A et seq. The Act grants certain employees the right to bring a "civil action to protect against retaliation in fraud cases" under section 806. Congress has stated that the Act will be governed by 49 U.S.C. section 42121(b) and the procedural regulations governing the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century. 18 U.S.C. 1514A(b)(2)(B). Accordingly, the Office of Administrative Law Judges for the U.S. Department of Labor ("OALJ") has jurisdiction over such complaints.

   The United States Department of Labor has promulgated regulations that govern the procedure for processing such complaints. In accordance with 29 C.F.R. part 1980, the "Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges" established by the Secretary of the U.S. Department of Labor and set forth at 29 C.F.R. part 18, shall apply in this proceeding.

   On May 10, 2003, Timothy Steffenhagen ("Complainant") filed a complaint with the U.S. Department of Labor's Occupational Safety and Health Administration ("OSHA"), alleging that he had been subjected to adverse employment actions in violation of Section 806 of the Act. OSHA investigated the complaint, and on July 18, 2003, concluded that the "complaint was not timely filed, lacked jurisdiction and no contact information regarding information concerning the respondents named in your allegations was provided. (Despite repeated requests for this information, you never provided it.)". See, Findings of OSHA dated July 18, 2003. On July 28, 2003, Complainant filed a request with OALJ for "hearing and motion for remand to OSHA to investigate his firing and blacklisting complaints." The case was then assigned to me for adjudication.

   The Rules of Practice and Procedure before OALJ provide that "[t]he Rules of Civil Procedure for the U.S. District Courts of the United States shall be applied in any situation not provided for or controlled by these rules, or by any statute, executive order or regulation." 29 C.F.R. section 18.1(a). The authority of an administrative law judge is set forth at 29 C.F.R. section 18.29, and includes the power to "[w]here applicable, take any appropriate action authorized by the Rules of Civil Procedure for the United States District Courts, issued from time to time and amended pursuant to 28 U.S.C. 2072." 29 C.F.R. section 18.29(a)(8).

   The regulations direct that "copies of all documents shall be served on all parties of record." 29 C.F.R. section 18.3(a). The regulations further state that "[s]ervice of complaints or charges in enforcement proceedings shall be made either:

(1) By delivering a copy to the individual, partner, officer of a corporation, or attorney of record;
(2) by leaving a copy at the principal office, place of business or residence;
(3) by mailing to the last known address of such individual, partner, officer or attorney. If done by certified mail, service is complete upon mailing. If done by regular mail, service is complete upon receipt by addressee.

29 C.F.R. section 18.3(d).

   Similarly, Rule 4 of the Federal Rules of Civil Procedure requires parties to serve notice of the complaint upon defending parties.¹ Parties bringing an action are responsible for service of process. Rule 4(c) Fed.R.Civ.P. Further, an action must be dismissed if service of the summons and complaint is not made upon a defendant unless the party who failed to perfect service can show good cause for the failure. Rule 4(m) Fed.R.Civ.P.; See, Armstrong v. Sears, 33 F.3d 182 (2nd Cir. 1994).

   The record fails to establish that Complainant served the named Respondents with notice of his complaint. Complainant has named no fewer than seventeen Respondents, including alleged foreign corporations, individuals, labor unions and the United States Department of Energy. See, Complaint of Complainant. OSHA has asserted that Complainant failed to comply with repeated requests for contact information concerning the named respondents. Complainant has taken no action to remedy this defect by serving notice of his complaint upon any of the parties he alleges to be in violation of the Act. Although the complaint includes a notation that suggests certain individuals were provided copies of the document, none of those individuals are among the named Respondents to Complainant's action.²

   I find that no good cause exists for Complainant's failure to perfect service of his complaint, and further find that its dismissal is warranted. In reaching this conclusion, I rely upon 20 C.F.R. section 18.1(a), and Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure. Rule 41(b) provides for the involuntary dismissal of an action for plaintiff's failure to comply with the Rules of Civil Procedure, including the service of process. Rule 41(b) Fed.R.Civ.P. Although Rule 41(b) provides for dismissal upon motion of defendant, a court's sua sponte dismissal of an action for failure of the plaintiff to effect service is appropriate. Gleason v. McBride, 869 F.2d 688 (2nd Cir. 1988). It is axiomatic that unless served notice of an action, a defendant cannot be expected to move for its dismissal. Notice may not be imputed to parties, and must be "reasonably calculated under all the circumstances, to apprise interested parties of the pendency of the action." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

¹ Although the legal concepts set forth in the Federal Rules of Civil Procedure have been adopted by the regulations controlling the adjudication of complaints under the Act, the timeframes established therein have not, and cannot be imputed due to the statute's mandate for expeditious adjudication of such complaints. See, 18 U.S.C. section 1514A.

² The individuals noted after "c:" are: Mr. Timothy L. Steffenhagen, Ms. Patricia K. Clark, Regional Administrator, Honorable John R. Spear, Honorable Howard Radzely, Acting Solicitor, Mr. Ralph Nader, Honorable Edward M. Kennedy, Honorable Hillary Rodham Clinton, and Mr. Marc Johnston, Esquire.