Furthermore, he neither responded to the ALJ's Order to Show Cause, nor did he take advantage of his opportunity to explain his actions to the Board. Having reviewed the record and the ALJ's R. D. & O., we conclude that Tevepaugh's complaint should be dismissed because he abandoned his claim. Accordingly, the Board ACCEPTS the ALJ's recommendation and DISMISSES Tevepaugh's complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 49 U.S.C.A. § 31105 (West 2007). The STAA has been amended since Tevepaugh filed his complaint. See Implementing Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266 (Aug. 3, 2007). We need not decide here whether the amended provisions are applicable to this complaint because even if the amendments applied, they are not at issue in this case and thus would not affect our decision.
2 29 C.F.R. Part 1978 (2007).
3 Hours of service regulations limit the number of hours a commercial truck driver may operate his or her vehicle during any given day and 7-day period. 49 C.F.R. § 395.3 (2007).
4 See 29 C.F.R. § 1978.105(a).
5 ALJ Order dated Jan. 30, 2007.
6 Tevepaugh v. J & B Trucking, 2006-STA-050, slip op. at 1 (July 16, 2007) (R. D. & O.).
7 Notice of Hearing and Prehearing Order, Feb. 12, 2007.
8 Notice of Hearing, May 23, 2007.
9 R. D. & O. at 1.
10 Order to Show Cause, June 6, 2007.
11 This regulation provides that an ALJ, to dispose of the proceeding without unnecessary delay, may render a decision against a party who fails to comply with an ALJ order.
12 R. D. & O. at 2.
13 29 C.F.R. § 1978.109(c)(2); Secretary's Order No. 1-2002, (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); Monroe v. Cumberland Transp. Corp., ARB No. 01-101, ALJ No. 2000-STA-050 (ARB Sept. 26, 2001); Cook v. Shaffer Trucking Inc., ARB No. 01-051, ALJ No. 2000-STA-017 (ARB May 30, 2001).
14 29 C.F.R. § 1978.109(c)(2).
15 See 5 U.S.C.A. § 557(b) (West 1996) ("On appeal from or on review of the initial decision, the agency has all the powers which it would have in making the initial decision . . . . "); 29 C.F.R. § 109(c)(3)(on review before ARB, the ALJ's "findings . . . with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be considered conclusive"); see also Palmer v. Western Truck Manpower, Inc., 1985-STA-006, slip op. at 1-2 (Sec'y Jan. 16, 1987) ("I have limited my review to an examination of whether the case record contains substantial evidence to support the ALJ's findings of fact and whether the ALJ's decision is in accordance with law. This is the standard of review which I will apply to all ALJ decisions covered by the newly promulgated regulations implementing section 2305 of the STAA."), vacated and remanded on other grounds, Western Truck Manpower, 943 F.2d 56 (9th Cir. 1991) (unpublished).
16 29 C.F.R. § 1978.106(a).
17 29 C.F.R. § 18.39(b).
18 ARB No. 07-046, ALJ No. 2006-STA-013, slip op. at 2 (Feb. 28, 2007)(citation omitted).
19 Id. at 2-3.