Office of Administrative Law Judges 603 Pilot House Drive, Suite 300 Newport News, Virginia 23606-1904
(757) 873-3099 (757) 873-3634
(FAX)
Issue date: 20Feb2002
CASE NOS.: 2002-STA-0018
2002-STA-0019
In the Matter of:
DANIEL S. SOMERSON,
Complainant
v.
MAIL CONTRACTORS OF AMERICA,
Respondent
Appearances:
Daniel S. Somerson, Complainant, pro se Oscar E. Davis, Esq., for Respondent
Before:
Richard E. Huddleston, Administrative Law Judge
RECOMMENDED ORDER DISMISSING COMPLAINTS
The above actions arise pursuant to § 31105 of the Surface Transportation Assistance Act of 1982, (hereinafter, "STAA" or the "Act") 49 U.S.C. 31101, et seq., and the regulations promulgated thereunder at 29 C.F.R. Part 1978, and the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges at 20 C.F.R. Part 18.
Mr. Somerson's statement in defiance of the pre-hearing order constitutes wilful failure to comply with the provisions of a court order, which could, in the absence of good cause, result in appropriate sanctions. See 29 C.F.R. §§ 18.6(d)(2) and 18.29. However, as the Complainant is, at this time, appearing pro se, his actions will result only in a warning that similar future conduct may result in the imposition of sanctions, which can include exclusion of evidence, dismissal of his complaint, and/or charges of contempt of court before the United States District Court. The Complainant is, again, strongly advised to seek the assistance of an attorney in prosecuting his complaint.
December 31, 2001 Order (ALJ 13).
5. On January 3, 2002, Mr. Somerson submitted by fax a letter (ALJ 15) which began, "Dear Judge Huddleston: I am in receipt of your ORDER dated December 31, 2001. You obviously can't read..." The letter further referred to this Judge as "Vittone's [Chief Judge John Vittone] henchman" and stated, "Forgive me Judge Huddleston, but you look most foolish in your attempts to quell case evidence..." (Emphasis as in original). Finally, Mr. Somerson stated, "I intend to continue full stream ahead. You and Vittone are welcome to pursue OALJ's vendetta with the 11th Circuit in attempts to gain a bogus contempt charge. How preposterous you all are!" (Emphasis as in original). (ALJ 15).
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6. A formal hearing was scheduled and commenced on February 6, 2002 at 9:00 a.m. in the Eleventh Circuit Court of Appeals Courtroom 435, 311 W. Monroe Street, Jacksonville, Florida. The transcript of the hearing is in the record, as well as a copy of the audio tape of the hearing, which is identified as ALJ 33.4
8. While Mr. Somerson was berating the court reporter, I attempted to interrupt him without success. At the end of this incident, Mr. Somerson was warned that if he did not stop talking when instructed, that the hearing would be terminated and his complaint dismissed. Mr. Somerson was further advised that he was interfering with the conduct of the hearing, and that it would not be permitted to happen. (Tr. page 8, 9).
9. In identifying the complaints and issues which would be considered, the parties were advised that the hearing would be de novo without regard to the findings of the OSHA investigation. During that statement the Complainant repeatedly interrupted in a loud voice. Counsel for Respondent then asked whether the record contained a copy of the OSHA findings. Counsel was advised that they were in the file and could be identified as exhibits if desired. At that point Mr. Somerson again objected in a loud voice. The objection was overruled, and while attempting to explain that the documents would be admitted solely to document that the complaints had been filed, Mr. Somerson again interrupted, objecting repeatedly in a loud and demanding tone. Because of those interruptions, Mr. Somerson was again warned that if he continued to obstruct the course of the hearing his complaints would be dismissed. During the course of that warning, Mr. Somerson continued to interrupt in a loud and arrogant tone of voice. (Tr. pages 9-12).
10. The hearing proceeded with identification of the various faxes submitted by Mr. Somerson, which included a request by Mr. Somerson that this Judge should recuse himself due to receipt of a letter sent by Chief Judge Vittone to Mr. Somerson regarding his abusive contacts with personnel in the Washington, D.C. office (See, ALJ 7). While the letter from Chief Judge Vittone was being described, Mr. Somerson again interrupted in a loud and arrogant voice that:
I called him [Chief Judge Vittone] last week. I'll call him tomorrow. I'll call him now. Should I go out to the car and get the cell phone and call him and ask if Johnny's having a nice day up in Washington?
Tr. page 16, line 22 to page 17 line 3.
11.Following Mr. Somerson's outburst, an attempt was made to explain why the motion would be denied. However, Mr. Somerson interrupted repeatedly with loud and arrogant outbursts. (Tr. pages 17-18). Mr. Somerson again turned to the Court Reporter, and in a loud and demanding tone stated, "Did you get it on the record, Bayley's [Bayley Court Reporting] ?"
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12. Upon completion of this tirade, the Court attempted to calm Mr. Somerson by indicating that while he may have a valid complaint, his conduct was preventing the hearing from being conducted. This attempt was interrupted repeatedly by Mr. Somerson's outbursts in a loud and arrogant tone of voice. (Tr. page 18).
13. At that time, Mr. Somerson interrupted that "My demeanor is representative of the conduct - - I'm a mirror image of you sir." He then launched into another tirade against the Chief Administrative Law Judge and the ARB. When he finished, Mr. Somerson was again warned that he was obstructing and interfering with the conduct of the hearing. During that warning, Mr. Somerson continued to interrupt in a loud and arrogant tone of voice. (Tr. page 20-21).
14. Following that exchange, the process of identifying the complaints and issues to be considered resumed (Tr. page 21, line 11). Upon completion of that process, the Respondent advised that it was prepared to go forward on all of those issues, despite not having been properly served with Mr. Somerson's requests and amendments.
15. The Court then turned to Mr. Somerson to address his earlier request to discuss "the latitude which would afforded to him as a pro se litigant." Mr. Somerson was advised that a great deal of latitude had already been afforded him in the course of the hearing, but that "I'm not going to give you much more in terms of obstructing the course of this hearing." (Tr. page 24, lines 17-24). It was also pointed out to Mr. Somerson that latitude had been given in that the various new issues would be considered even though they had been submitted by fax and not served on all parties as required by the Court's orders. He was also cautioned, however, that,
However, I will tell you that all of what is occurring in this case may accumulate to the point of requiring me, to preserve the integrity of this process, to refer this matter to the U.S. District Court for contempt charges.
Tr. page 25, lines 11-15.
16. In response, Mr. Somerson requested to ask a question and was permitted. In a loud, arrogant and demanding tone Mr. Somerson inquired, "Did you say you would refer the matter - - Your Honor, I have a question. Do you have the authority at this given moment to find me in contempt?" To which I responded, "No I do not, sir." (Tr. page 27).
17. An attempt to resume the hearing was repeatedly interrupted by Mr. Somerson in a loud and demanding tone. During these interruptions, Mr. Somerson was advised, "This is your last warning." To which Mr. Somerson loudly stated that, "I have questions about this procedure which you are not answering." (Tr. page 28).
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18. Therefore, the nature and issues of a whistleblower complaint under the STAA were then explained to Mr. Somerson. (Tr. page 29). Regarding those issues, the Respondent was requested to stipulate and did stipulate that it is covered by the STAA (jurisdiction) and that Mr. Somerson had made safety complaints under the Act (protected activity). (Tr. page 30).
19. While the Respondent was attempting to agree that Mr. Somerson had made safety complaints, Mr. Somerson resumed his interruptions. At that time Counsel for Respondent inquired, "The only issue here, Your Honor, that I would raise, and it's really a legal question is, is there a point in time where when you are making sham - -" Again, Mr. Somerson began shouting objections and making statements in a loud voice, repeatedly interrupting Counsel. His objection was overruled, but Mr. Somerson continued to object and interrupt with loud statements such as, "Public safety supersedes your right to make money." (Tr. page 31-32).
20. At the end of this tirade by Mr. Somerson, he was advised that the hearing would be terminated and his complaints would be dismissed due to his obstruction of the hearing. Mr. Somerson was ordered to leave the courtroom so that the record could be identified and closed without his interruptions. Mr. Somerson responded, "I'm not going anywhere." The U.S. Marshals who were present in the courtroom, were then asked to escort Mr. Somerson out of the room. While being escorted from the courtroom, Mr. Somerson continued to rave about matters unknown to this Judge and apparently with no connection to this case. Mr. Somerson, just before exiting the door stated, "My demeanor and behavior represents an indictment of these proceedings..."
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(Tr. page 32-33).
21. After Mr. Somerson was removed from the courtroom, the record was closed and the Respondent was advised that the written order dismissing the complaints would include copies of all of the faxes submitted by Mr. Somerson to insure the Respondent had all of the faxes.6
On February 7, 2002, Daniel Somerson called the Newport News Office of Administrative Law Judges and was transferred to me. Before the call was transferred, the Legal Technician who answered the phone, advised me that the call was being recorded. Upon answering the call, Mr. Somerson asked for my title. I replied, "law clerk." He asked "to Huddleston?" and I replied "Yes, to Judge Huddleston." He then said: "I want you to give him a message for me. He's an asshole." He then hung up the telephone. All of this transpired around 2:20 in the afternoon.
Memorandum from Attorney Advisor. (ALJ 29).
23. Following this incident, an order was issued on February 11, 2002, directing Mr. Somerson to cease attempts to contact this office by telephone or fax. The order indicated that the entire matter was being referred to the U.S. District Court for contempt proceedings, and that further violations of that order would constitute additional contumacious conduct. (ALJ 30).7
The Administrative Procedure Act at 5 U.S.C. §§ 556(c) grants an Administrative Law Judge the authority to regulate the course of the hearing, subject to published rules of the agency. The Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, at 29 C.F.R. Part 18, set forth the agency rules for consideration of matters before an Administrative Law Judge. The rules provide in § 18.36 (Standards of Conduct) that all persons appearing are expected to act with integrity, and in an ethical manner; and that an administrative law judge may exclude parties, participants, and their representatives for refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly and ethical conduct, failure to act in good faith, or violation of the prohibition against ex parte communications.
Additionally, § 18.6(d)(2) provides, inter alia, that if a party fails to comply with an order of the administrative law judge, the administrative law judge, for the purpose of permitting resolution of the relevant issues and disposition of the proceeding without unnecessary delay despite such failure, may take such action in regard thereto as is just,
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including but not limited to the following:
(i) Infer that the admission, testimony, documents or other evidence would have been adverse to the non-complying party;
(ii) Rule that for the purposes of the proceeding the matter or matters concerning which the order or subpoena was issued be taken as established adversely to the non-complying party;
(iii) Rule that the non-complying party may not introduce into evidence or otherwise rely upon testimony by such party, officer or agent, or the documents or other evidence, in support of or in opposition to any claim or defense;
(iv) Rule that the non-complying party may not be heard to object to introduction and use of secondary evidence to show what the withheld admission, testimony, documents, or other evidence should have shown.
(v) Rule that a pleading, or part of a pleading, or a motion or other submission by the non-complying party, concerning which the order or subpoena was issued, be stricken, or that a decision of the proceeding be rendered against the non-complying party, or both.
Throughout the course of this proceeding, I find that the Complainant has willfully and intentionally violated court orders, abused personnel during telephone calls, and finally, so disrupted the conduct of the formal hearing that it had to be terminated. Therefore, I find that the complaints filed in these matters must be dismissed for cause due to the Complainant's misconduct.
Further, I find that the Complainant, due to his misconduct, has waived his right to present evidence in support of his complaints. It is inferred that the Complainant has no evidence to support his allegations that he has been adversely affected, disciplined or discriminated against regarding pay, terms, or privileges of employment, because he has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order; or because he has testified or will testify in such a proceeding; or because he has refused to operate a vehicle because the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or because he has a reasonable apprehension of serious injury to himself or the public because of the vehicle's unsafe condition.
Finally, it is inferred that all actions taken by the Respondent (which are the subject of the two complaints filed with OSHA as well as the requests to amend his complaints filed by Mr. Somerson in facsimiles to the Office of Administrative Law Judges), were taken without regard to any activity of Mr. Somerson which might be considered as protected under the Act. Specifically, it is inferred that the suspension of Mr. Somerson to obtain medical opinions as to his fitness to drive, due to his repeated absences on complaints of fatigue, was a reasonable action by the Respondent to insure public safety. It is also inferred that the warning letter issued by Respondent to Mr. Somerson is reasonable in light of his repeated absences due to complaints of fatigue following receipt of medical opinions that he is fit to drive. (See, Complainant's faxes seeking to amend his complaints).
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Therefore, I find that in addition to dismissal of the complaints for cause, a decision on the merits of the proceeding must be rendered against the Complainant.
RECOMMENDED ORDER
It is, accordingly, Ordered that:
1. The complaints filed by Daniel S. Somerson versus Mail Contractors of America under the Act, including all amendments and additional charges raised by the Complainant in facsimile transmissions during this proceeding are Dismissed, with prejudice, for cause.
2. The complaints filed by Daniel S. Somerson versus Mail Contractors of America under the Act, including all amendments and additional charges raised by the Complainant in facsimile transmissions during this proceeding are Denied on the merits.
3. At the request of the Respondent at the end of the hearing, leave is hereby granted to file a motion, within 20 days of this order, for attorney's fees.
Richard E. Huddleston
Administrative Law Judge
NOTICE: This Recommended Order Dismissing Complaints and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington D.C. 20210. See 29 C.F.R. §§ 1978.109(a); 61 Fed. Reg. 19978 (1996).
[ENDNOTES]
1 The record in this matter is identified as Administrative Law Judge Exhibits 1 through 33 (ALJ 1 through ALJ 33). There are no Complainant Exhibits or Respondent Exhibits for the reasons set out in the decision. The transcript of the hearing will be referred to as "Tr." followed by the page number.
2 Mr. Somerson's abusive conduct during the pre-trial stage, during the course of the attempted hearing, and subsequent to the hearing, have been certified to the United States District Court for the Middle District of Florida. An Order to Show Cause for contempt proceedings, requiring Mr. Somerson to appear on February 28, 2002, was issued by the U.S. District Court on February 14, 2002. (ALJ-31 and 32).
3 The U.S. Department of Labor Administrative Review Board considers, inter alia, appeals from whistleblower decisions by Administrative Law Judges. Further appeals are then considered by the U.S. Court of Appeals having jurisdiction over the matter. This case arises within the jurisdiction of the 11th Circuit Court of Appeals as the Complainant resides in Jacksonville, Florida.
4 As of the date of issuance of this recommended order, the audio tape has not been received from the court reporter, but will be forwarded to the Administrative Review Board upon its receipt.
5 As there was no attestation of service on all parties as required by the pre-hearing order, it was unknown whether the Respondent was aware of and prepared to proceed with the issues raised by Mr. Somerson's faxes.
6 Mr. Somerson's faxes are identified in the record as ALJ exhibits. The copy of this order provided to Counsel for Respondent includes copies of the faxes.
7 While this order was being prepared, Mr. Somerson submitted a fax on February 11, 2002, to the Office of Administrative Law Judges in Washington, D.C. (ALJ-31 attachment).
8 Section § 18.29(b) of Title 29 C.F.R. provides for certification to the U.S. District Court for appropriate action if any person disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the hearing as to obstruct a hearing.
