ARB CASE NO. 05-091
ALJ CASE NO. 2005-STA-14
DATE: August 31, 2006
In the Matter of:
KEVIN S. ROSE,
COMPLAINANT,
v.
ATC VANCOM, INC.,
RESPONDENT.
BEFORE: THE
ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Respondent:
James
N. Forster, Jr., Esq., Geoffrey M. Gilbert, Jr., Esq., McMahon, Berger,
Hanna, Linihan, Cody & McCarthy, St. Louis, Missouri
FINAL DECISION AND ORDER
This
case arises under the employee protection provisions of the Surface
Transportation Assistance Act (STAA) of 1982, as amended.[1]
Kevin S. Rose filed a complaint with the
Department of Labor’s Occupational Safety and Health Administration (OSHA)
alleging that ATC Vancom, Inc. terminated his employment in violation of the STAA.
On May 16, 2005, an Administrative Law Judge (ALJ) issued a “Recommended
Decision and Order Dismissing Case and Vacating Trial” (R. D. & O.),
recommending that the complaint be dismissed. For the following reasons we
dismiss the complaint.
[Page 2]
BACKGROUND
Rose was employed by ATC Vancom as a bus driver when he
refused to drive his assigned vehicle on two occasions in July 2004. ATC
Vancom discharged Rose on or about August 2, 2004. Secretary’s Findings at 2.
On August 17, 2004, Rose filed his complaint with OSHA. OSHA investigated and
found that ATC Vancom did not violate the STAA. Rose submitted a request for a
hearing to the Office of Administrative Law Judges on January 21, 2004.
The ALJ issued a Notice of Hearing and Prehearing
Order (Prehearing Order) on February 2, 2005. The Order indicated that the ALJ
would conduct a hearing on Rose’s complaint on February 24, 2005. The Order
also instructed Rose to submit a prehearing statement and witness list to the
ALJ and ATC Vancom, and to exchange exhibits with ATC Vancom.
On February 16, 2005, Rose sent a letter to the ALJ requesting
that his hearing “be rescheduled to a later date” and requesting an attorney to
present his case at the hearing. Rose did not send a copy of the letter to ATC
Vancom. The ALJ responded to Rose’s letter on March 3, 2005, by informing Rose
that: (1) the hearing would take place on March 17, 2005; (2) Rose should not send
correspondence to the ALJ on an ex parte basis; (3) the Office of
Administrative Law Judges does not provide advocate representatives; and (4)
his failure to submit a prehearing statement could result in dismissal of his
case for lack of prosecution.
ATC Vancom filed a Motion for Continuance of Hearing
Date on March 7, 2005, requesting that the hearing be rescheduled because it had
not received Rose’s prehearing statement. In response, the ALJ issued a Notice
of Second Trial Continuance on March 14, 2005 (Notice), rescheduling the
hearing for May 16, 2005. The Notice ordered Rose to “immediately serve on
Respondent and file with this Office his prehearing statement of position and
witness lists.” Notice at 1. The Notice also instructed Rose to “make all
efforts to retain an attorney for his representation in this case or be
prepared to proceed without an attorney” and indicated that “[t]here will be no
further continuances.” Id. at 2. Rose did not submit a prehearing
statement or witness list to either the ALJ or ATC Vancom.
On May 12, 2005, ATC Vancom filed a “Motion to Dismiss
or In the Alternative Motion to Extend Trial Date” arguing that, because Rose
had not complied with the Prehearing Order, the ALJ should dismiss the
complaint for lack of prosecution. Rose did not respond to this motion. On
May 16, 2005, the ALJ issued an R. D. & O. recommending dismissal of the
complaint based upon Rose’s failure to comply with the Prehearing Order.
[Page 3]
This case is before the Board pursuant to the STAA’s
automatic review provisions.[2]
On May 23, 2005, the Board issued a Notice of Review and Briefing Schedule,
informing the parties of their right to file briefs in support of or in
opposition to the R. D. & O. Rose did not file a brief. ATC Vancom
submitted a Brief in Support of Administrative Law Judge’s Dismissal on June
15, 2005.
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated to the
Administrative Review Board the authority to issue final agency decisions under
the STAA and its implementing regulations.[3]
The ARB is required to issue “a final decision and order based on the record
and the decision and order of the administrative law judge.”[4]
The Board is bound by the ALJ’s factual findings if those findings are
supported by substantial evidence on the record considered as a whole.[5]
The Board reviews questions of law de novo.[6]
DISCUSSION
Courts possess the
“inherent power” to dismiss a case on their own initiative for lack of
prosecution.[7] This power is
“governed not by rule or statute but by the control necessarily vested in
courts to manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.” [8] Like the courts,
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.[9]
[Page 4]
Furthermore, as the ALJ noted, the applicable Rules of
Practice and Procedure permit an ALJ to dismiss cases when a party fails to
comply with any of the ALJ’s orders.[10]
Here
the ALJ issued a lawful order on February 2, 2005, when he instructed Rose to
submit a prehearing statement and witness list and to exchange exhibits with
ATC Vancom. The ALJ issued two subsequent notices reminding Rose to comply
with the Prehearing Order, the first of which warned Rose that his case could
be dismissed if he did not comply. But Rose did not submit any prehearing
materials or explain his failure to comply. In addition, Rose did not submit a
brief to this Board explaining his failure to comply with the Prehearing
Order. Based upon the record before us, we conclude that substantial
evidence and well-established legal precedent support the ALJ’s recommended
decision to dismiss.
CONCLUSION
Rose failed to comply with the ALJ’s February 2, 2005
Prehearing Order requiring him to serve and file a prehearing statement,
witness list, and exchange exhibits with ATC Vancom. Accordingly, the
Board ACCEPTS the ALJ’s R. D. & O. and DISMISSES Rose’s
complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
OLIVER M. TRANSUE
Administrative Appeals Judge
[1] 49 U.S.C.A. § 31105 (West 1997).
[2] “The
[ALJ’s] decision shall be forwarded immediately, together with the record, to
the Secretary for review by the Secretary or his or her designee.” 29 C.F.R. §
1978.109(a).
[3] Secretary’s Order 1-2002 (Delegation of
Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg.
64,272 (Oct. 17, 2002); 29 C.F.R. Part § 1978 (2005).
[4] 29 C.F.R. § 1978.109(c)(1).
[5] 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).
[6] See Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 986 (4th Cir. 1993).
[7] Link v. Wabash R. R. Co., 370 U.S. 626, 630 (1962).
[9] Kruml v. Patriot
Express,
ARB 03-015, ALJ No. 02-STA-7, slip op. at 4-5 (ARB Feb. 25, 2004); Assistant Sec’y for OSH and Reichelderfer v. Bridge
Transp., Inc., ARB No. 02-068, ALJ No.
2001-STA-041, slip op. at 3 (ARB Aug. 29, 2003); Tucker v. Connecticut
Winpump Co., ARB No. 02-005, ALJ No. 2001-STA-53, slip op. at 4 (ARB Mar.
15, 2002); Curley v. Grand Rapids Iron & Metal Co., ARB No. 00-013,
ALJ No. 99-STA-39, slip op. at 2 (ARB Feb. 9, 1999).
[10] See 29 C.F.R. § 18.6(d)(2)(v); Dickson
v. Butler Motor Transit, ARB No. 02-098, ALJ No. 01-STA-039, slip op. at 4
(ARB July 25, 2003) (ALJ acted within range of his discretion in dismissing
STAA complaints after complainant repeatedly ignored the ALJ’s discovery and
other orders.).
