Therefore, the ALJ abused his discretion in entering a default judgment against Ameriquest. Accordingly, we remand this case to give Ameriquest an opportunity to respond to the ALJ's Order To Show Cause.
Because of our decision to remand, we need not address Ameriquest's arguments concerning lack of subject matter jurisdiction and timeliness of the complaint. With regard to jurisdiction, however, we note that statutory limitations on coverage are not jurisdictional unless Congress has explicitly ranked them as jurisdictional. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
Conclusion
We VACATE the ALJ's default judgment and REMAND for further proceedings consistent with this Order.
SO ORDERED.
DAVID G. DYE
Administrative Appeals Judge
OLIVER M. TRANSUE
Administrative Appeals Judge
[ENDNOTES]
1 18 U.S.C.A. § 1514A (West Supp. 2005). Regulations implementing the SOX are found at 29 C.F.R. Part 1980 (2007).
2 There is no record evidence that OSHA sent a copy of its findings to Ameriquest.
3 There is no certificate of service indicating that McCloskey mailed his objections to Ameriquest. McCloskey acknowledged at the hearing that he sent Ameriquest a pdf file. Tr. at 5. There is a pdf file in the record, labeled "Case File," which contains copies of documents filed by McCloskey. There is no evidence, however, that this was the pdf file that McCloskey mentioned at the hearing.
4 The record shows that McCloskey's wife acknowledged receipt of the Notice of Hearing on August 6, 2005. Exh. ALJ-4.
5 See Secretary's Order 1-2002 (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002). See also 29 C.F.R. § 1980.110.
6 See 29 C.F.R. § 1980.110(b).
7 5 U.S.C.A. § 557(b).
8 See Getman v. Southwest Sec., Inc., ARB No. 04-059, ALJ No. 2003-SOX-008, slip op. at 7 (ARB July 29, 2005).
9 18 U.S.C.A. § 1514A(b)(2)(A) (Action under paragraph (1)(A) shall be governed under the rules and procedures set forth in section 42121(b) of title 49, United States Code.)
10 49 U.S.C.A. § 42121(b)(1).
11 29 C.F.R. § 1980.100(b).
12 29 C.F.R. § 18.3(a), (b).
13 29 C.F.R. § 1980.108(a); see also 29 C.F.R. § 1980.101 (defining "named person" as the employer and/or the company or company representative named in the complaint who is alleged to have violated the Act.").
14 29 C.F.R. § 18.3(a).
15 "Complaint" is defined in the regulations as "any document initiating an adjudicatory proceeding, whether designated a complaint, appeal or an order for proceeding or otherwise . . . ." 29 C.F.R. § 18.2(d).
16 29 C.F.R. § 18.3(d).
17 29 C.F.R. § 18.39(b).
18 Powers v. Paper, Allied-Industrial, Chemical & Energy Workers Int'l Union, ARB No. 04-111, ALJ No. 2004-AIR-019, slip op. at 7 (ARB Aug. 31, 2007).