Farland v. Giroux Brothers Transportation, Inc., 2002-STA-45 (ALJ Mar. 21, 2003)

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: 21 March 2003

Case No. 2002-STA-45

In the Matter of

JOHN J. FARLAND
    Complainant

    v.

GIROUX BROTHERS TRANSPORTATION, INC.
    Respondent

BEFORE: RUDOLF L. JANSEN
    Administrative Law Judge

   This proceeding arises under the employee protection provisions of 49 U.S.C. § 31105 of the Surface Transportation Assistance Act (STAA), and the applicable regulations issued thereunder at 29 C.F.R. Part 1978. On August 7, 2002, the Acting Regional Administrator, Occupational Safety and Health Administration, U.S. Department of Labor, issued his Findings on a Complaint filed by John J. Farland against Giroux Brothers Transportation, Inc. in which he concluded that it was reasonable to believe that the Respondent did not violate 49 U.S.C. § 31105.

   In response to the Acting Regional Administrator's Findings, the Complainant timely appealed the Findings on September 10, 2002 by indicating in a written statement that he was "filing an objection and respectfully requests a hearing on the record." The Complainant's objections to the Preliminary Findings constitute the filing of an Answer. Sharp v. James Helwig & Son, Inc., 90-STA-30 (Sec'y Jan. 18, 1991). The case was subsequently scheduled for hearing in Boston, Massachusetts.

   On February 27, 2003, I received a document captioned Dismissal of Request for Hearing with Prejudice. The document was signed by both John J. Farland and also Paul J. O'Riordan who is counsel of record for the Respondent. In the dismissal request, Mr. Farland represents that pursuant to 29 C.F.R. § 18.39(b) of the Rules of Practice and Procedure for Administrative Hearings in this office that he dismisses his request for hearing in this matter, with prejudice, and waives any further rights of appeal. The written statement indicates that it is submitted with the consent of the Respondent. I accept the signed statement by the parties as a voluntary abandonment of the Complainant's request for hearing.

   The procedural rule found at Section 18.39(b) indicates that a request for hearing may be dismissed upon its abandonment or settlement by the party or parties who filed it. The regulation offers guidance as to what is essential in making a finding that abandonment has occurred. Although the provision could be made applicable to the circumstances of this case, I believe that the STAA regulations provide more specific guidance as to the proper method for disposition of this matter.

   Twenty-nine C.F.R. § 1978.111(c) permits a party to withdraw objections to the Secretary's Preliminary Findings or Preliminary Order at any time before the Findings or Order become final. Creech v. Salem Carriers, Inc., 88-STA-29(Sec'y Sept. 27, 1988). Under these circumstances, the Administrative Law Judge must issue a final Order reinstating and affirming the Preliminary Findings of the Acting Regional Administrator. Shown v. Wilson Truck Corp., 92-STA-6 (Sec'y April 30, 1992). Fed. R. Civ. P. 41(a)(1) is not applicable since it permits a dismissal without prejudice only at a time before an Answer to the Complaint has been filed. In this case, the Secretary's Findings were issued on August 7, 2002 and the Complainant filed his objections in September of 2002 and those objections coupled with his request for hearing constitute an Answer and therefore render Rule 41 inapplicable. Sharp v. James Helwig & Son, Inc., supra. I will also treat the Complainant's Request for Dismissal of Request for Hearing as constituting a withdrawal of his objections to the Secretary's Preliminary Findings. Snow v. TTNT Red Star Express, Inc., 91-STA-44 (Sec'y March 13, 1992).

   John J. Farland is acting as a pro se Complainant in this matter. It has been previously implied that an Administrative Law Judge should ascertain whether a pro se Complainant is aware of the effects of a request for dismissal of his Complaint under authority of Fed. R. Civ. P. 41(a)(1). That determination is unnecessary in this case since Rule 41 is inapplicable as noted earlier.

   In view of the above, IT IS ORDERED that the Complainant's Request for Dismissal of Hearing, with prejudice, is hereby GRANTED pursuant to authority conferred by 29 C.F.R. § 1978.111(a), 29 C.F.R. § 18.39(b) and the written statement signed by both parties. Accordingly, the August 7, 2002, Secretary's Findings issued by K. Frank Gravitt, Acting Regional Administrator of the Occupational Safety and Health Administration, concluding that Respondent's discharge of Complainant was not a violation of 49 U.S.C. § 31105 of the Act are hereby affirmed and reinstated. The complaint, therefore, is hereby DENIED. This Order is the final administrative action and no Secretarial review is required. Underwood v. Blue Springs Hatchery, 87-STA-21 (Dep. Sec'y Nov. 2, 1987)(Order to Show Cause).

       RUDOLF L. JANSEN
       Administrative Law Judge