Lane v. Roadway Express Inc., 2002-STA-38 (ALJ Oct. 4, 2002)

U.S. Department of Labor

Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Issue date: 04Oct2002

Case No: 2002-STA-38

In the Matter of,

SELWYN T. LANE,
    Complainant,

    v.

ROADWAY EXPRESS INC.,
    Respondent

   The above-captioned matter arises under the Surface Transportation Assistance Act of 1982, as amended, 49 U.S.C. § 31105 and the Regulations found at 29 C.F.R. Part 1978. On July 10, 2002, a Pre-Hearing Order was issued by the undersigned. Both parties timely responded to the Pre-Hearing Order. Roadway Express filed a motion to dismiss Complainant's objection to the Secretary's findings and order, and a motion to stay discovery on August 20, 2002. Mr. Lane submitted Complainant's memorandum of law in opposition to Respondent's motion to dismiss, the affidavit of Selwyn T. Lane, and the affidavit of Paul O. Taylor on August 30, 2002. Roadway Express followed by submitting a reply in support of its motion to dismiss Complainant's objection on September 10, 2002.

   Mr. Lane is employed by Roadway Express as a truck driver. He was issued a warning letter on January 20, 2000, for delay of freight occurring on January 9 and 10, 2000. Mr. Lane filed a complaint with the United States Department of Labor, alleging that Roadway Express had unlawfully discriminated against him for refusing to drive in bad weather. Subsequently, on or about May 23, 2000, Roadway Express withdrew the disciplinary notice. The Department of Labor issued the Secretary's Findings on June 7, 2002. The Secretary determined that the complaint has no merit and dismissed the case. The Secretary, noting that Mr. Lane had requested payment of attorney's fees, deemed such an award not reasonable and declined to award attorney's fees.

Motion to Dismiss

   Article III of the United States Constitution limits federal courts to the adjudication of actual, ongoing cases and controversies. Deakins v. Managhan, 484 U.S. 193, 199 (1988). An actual controversy must exist at all stages of review, and not simply on the date the action was initiated. Rettig v. Kent City School Dist., 788 F.2d 328, 330 (6th Cir.), cert. denied, 478 U.S. 1005 (1986). A case will become moot when the requested relief is granted or no live controversy remains. Deakins, 484 U.S. at 199; see also Roadway Express, Inc. v. Administrative Review Board, U.S. Dep't of Labor, 6 Fed. Appx. 297 (6th Cir. 2001)(unpublished).¹ An exception to the mootness doctrine applies to those exceptional cases where a plaintiff makes a reasonable showing that he or she will again be subjected to the sanction. ConnAire, Inc. v. Secretary, United States Dep't of Transp., 887 F.2d 723, 725-726 (6th Cir. 1989).

   49 U.S.C. § 31105(a)(3)(B) authorizes the Secretary, upon the complainant's request and following the issuance of an order that § 31105(a) was violated, to assess costs incurred by the complainant in bringing the complaint (including reasonable attorney fees) against the person against whom the order was issued. The Secretary found the complaint to be without merit and dismissed the complaint. The Secretary did not issue an order under § 31105(a)(3)(A), therefore I find that Mr. Lane is not entitled to receive the costs incurred by bringing the complaint, nor attorney's fees, at the level before the Secretary or for the present de novo matter.² Therefore,

   IT IS ORDERED: (1) Roadway Express' motion to dismiss Complainant's objection to the Secretary's findings and order is GRANTED; (2) Mr. Lane's request for attorney's fees is DENIED; (3) Roadway Express' motion to stay discovery is DENIED, as the matter has been dismissed..

       Thomas F. Phalen, JR.
       Administrative Law Judge

   This Recommended Decision and Order 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, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).

¹Pursuant to 6 Cir.R. 28, the undersigned believes that this unpublished decision holds significant precedential value relative to the material issues involved.

²"The question of whether a complainant can recover costs and attorney's fees under 49 U.S.C. § 31105(a)(3)(B) is, however, not governed by the prevailing-party doctrine . . . . That doctrine is derived from a different statutory provision, 42 U.S.C. § 1988. The Surface Transportation Assistance Act , in contrast, permits the assessment of fees and costs ‘against the person against whom the order is issued'. 49 U.S.C. § 31105(a)(3)(B). " See Roadway Express, Inc. v. Administrative Review Board, U.S. Dep't of Labor, 6 Fed. Appx. at 6. Therefore, there is no need to determine whether Mr. Lane would qualify as a prevailing-party.