that no violation of the Act had occurred as alleged in the complaint, and Cruver, by facsimile transmissions dated June 28, 2001, to the Office of Administrative Law Judges, requested a hearing. Burns has now moved for dismissal on the ground that Cruver failed to file a copy of his request for hearing with Respondent in compliance with 29 C.F.R. § 24.4(d)(3). Burns cites Webb v. Numanco, LLC , 98 REA 27 and 28 (ALJ, July 17, 1998) in support of its motion. In response, Cruver notes that he is not represented by counsel and was not aware of the notification requirement imposed by the rule, but, in any event, he believes his oversight caused Burns no prejudice or undue hardship.
I.
The applicable rules published in 29 C.F.R. Section 24.4(d)(2) and (d)(3) provide as follows:
(2). The notice of determination shall include or be accompanied by notice to the complainant and the respondent that any party who desires review of the determination or any part thereof, including judicial review, shall file a request for a hearing with the Chief Administrative Law Judge within five business days of receipt of the determination. The complainant or respondent in turn may request a hearing within five business days of the date of the timely request for a hearing by the other party. If a request for a hearing is timely filed, the notice of determination shall be inoperative, and shall become operative only if the case is later dismissed. If a request for a hearing is not timely filed, the notice of determination shall become the final order of the Secretary.
(3). A request for a hearing shall be filed with the Chief Administrative Law Judge by facsimile (fax), telegram, hand delivery, or next-day delivery service. A copy of the request for hearing shall be sent by the party requesting a hearing to the complainant or the respondent, as appropriate, on the same day that the hearing is requested, by facsimile (fax), telegram, hand delivery, or next-day delivery service....
In its notice of determination, OSHA advised Complainant that he must file an appeal with the Chief Administrative Law Judge within five calendar days of the receipt of the notification by facsimile, overnight/next day delivery mail, or by telegram. As set forth above, Complainant sent a fax to the Chief Administrative Law Judge, advising pursuant to 29 C.F.R. Section 24.4 (d)(2), that he was requesting a hearing with respect to the adverse findings by OSHA. Based upon the date of receipt of the copy of Ms. Mann's letter by OALJ's Docket Office, it appears that Complainant's request for a hearing was timely filed within five business days as required by the regulation, and Respondent does not contend otherwise.
The case was assigned for hearing on July 2, 2001, and a Notice of Hearing issued on July 11, 2001, scheduling August 22, 2001, as the date of hearing. Following a conference call on August 14, 2001, the hearing was canceled pursuant to a request of the parties, and reset, by Notice issued September 26, 2001, for November 13, 2001. The parties pursued discovery and requested subpoenas in preparation for the hearing. Subsequently, however, both parties sought a second continuance, and for good cause shown, the November 13, 2001, hearing was canceled by order issued October 29, 2001.
As discussed above, Respondent has now filed a motion seeking to dismiss this matter, avering that Complainant has not served a copy of his request for hearing by any means required by the regulations. Thus, it contends that since the Complainant has failed to comply with the regulatory requirements of service on the parties, jurisdiction to proceed is lacking and the Complainant's request for hearing should be dismissed.
II.
In Webb , supra , District Chief Judge Dan Rokentenetz held, in circumstances virtually identical to those at issue here, that changes in the filing regulations promulgated and published by the Department of Labor in March, 1998, manifest an intent on the part of the Secretary to accord filing and service requirements jurisdictional status. Noting that changes in the regulations superceded Jain v. Sacramento Municipal Utility , 89-ERA-39 (1989) affirmed (Sec., Nov. 21,1991), which had held that the copying requirements then in effect were merely directive, not jurisdictional, Judge Rokentenetz reasoned that the amended rules required dismissal of Webb's complaint.
A review of the rules supports Webb's rationale. The regulation interpreted by Jains provided that "copies of any request for hearing be sent by the complainant to the respondent...." 29 C.F.R. § 24.4(d)(2)(ii). The regulations now in effect enlarged the time for filing an appeal from five calendar days to five business days, and designate acceptable methods of service to explicitly include facsimile (fax), telegram, hand delivery or next-day delivery service. Notably, regular mail was not included as an acceptable means of service for either a request for hearing or for notice of such request on the parties to a proceeding. In contrast with the previous rule, the rule now in effect specifies when, to whom, and by what means the notice of a request for hearing must be served. 29 C.F.R. Section 24.4(d)(3).
The undisputed facts in this case reflect that the Complainant made a timely request for a hearing with the Chief Administrative Law Judge using one of the prescribed methods of service. The facts further show, however, that the Complainant not only failed to serve Burns on the same day he transmitted the request for hearing as required by the rule, he failed to serve the required notice on Burns at all.
III.
Now, Respondent does not allege that it was prejudiced by Complainant's failure to serve it in compliance with the applicable regulation. Rather its motion requires us to consider whether, in view of Cruver's timely request for hearing to the Chief Administrative Law Judge, the failure to serve Respondent with a copy of the request, defeats jurisdiction to hear this matter. In this regard, I am persuaded by the rationale in Webb that the Jain regulations were more "loosely" drafted than the regulations that govern this proceeding, and that Jain is no longer controlling authority. The prior regulations did not require service "on the same day as the hearing is requested" nor did they set forth any specific manner of service on the parties. The changes deemed appropriate by the Secretary in these respects are explicit, substantive, particularly as to time, and mandatory.
As the Webb decision observed, the Secretary was aware of the Jain decision when the new regulations were promulgated to impose definitive service requirements. Indeed, the explanatory notes in the regulatory history of the amendments explain that "Sec. 24.4(d)(3) is revised to make it clear that service of copies of the appeal must be done by the party appealing." 63 Fed. Reg. 6613, at 6617 (Feb. 9,1998). Thus, Webb concluded, and I concur its rationale, that "the compulsory language of the regulation in the context of the underlying intent of the language leaves little room for interpretation. The service requirement language in the regulation clearly says what it means." While the Secretary was free to adopt the language of the prior regulation, and the interpretation of it rendered in Jain , the Secretary obviously elected to impose more exacting service requirements.
As such, the structure of the regulations by which an appeal is perfected under Subsections (2) and parties are notified under Subsection (3) no longer suggest that the notification provision is merely "directive." In light of the amendments which not only require service of the request for hearing on the respondent, but further specify the precise time and methods of service a complainant must employ, it appears that these new requirements are part and parcel of the procedures required to perfect the appeal. Under these rules, it appears that notification to the Chief Judge and the opposing party is a jurisdictional prerequisite to perfecting an appeal.
IV.
Although the Administrative Review Board has yet to address the specific regulation at issue here, it has considered several of the procedural provisions set forth in the regulations. In Degostin v. Bartlett Nuclear, Inc. , 98-ERA-7 (ARB May 4,1998), for example, the Board strictly construed the time limit for filing a request for a hearing. See also , Backen v. Entergy Operations, Inc. , 95-ERA-46 (ARB June 7, 1996), slip op., at p.4; Crosier v. Westinghouse Hanford Co. , 92-CAA-3, (Sec'y Jan 12, 1994), slip op., at p. 10. Id ., slip op., at p. 3. Because whistleblower procedures contemplate expedited filing, a complainant who relies on alternate means for delivery, e.g ., by mail, assumes the risk that the request may be received, beyond the due date. See , Staskelunas v. Northeast Utilities Co. , 98-ERA-8 (ARB May 4, 1998), fn. 5. In this instance, Complainant's notice to Respondent was not merely late. Because he never transmitted it, Respondent never received it. Although Respondent fully participated in pre-trial preparation and established no actual prejudice in this matter, considering the language of the regulations, the regulatory history, and the analogous case law, it appears that the time of transmission and service of the request for hearing in accordance with 29 C.F.R § 24.4(d)(3) are jurisdictional in nature, and that Complainant has, accordingly, failed to satisfy the jurisdictional requirements of the regulation.2 See , Webb v. Numanco , supra . Therefore;
ORDER
IT IS ORDERED that the complaint filed by Jonathan Cruver be, and it hereby is, dismissed, and that the decision rendered in this matter by OSHA become the final order of the Secretary of Labor.
Stuart A. Levin
[ENDNOTES]
1
2 pro se litigant; however, his plea of ignorance regarding the applicable rule would not mitigate his failure to comply with its requirements. Whether or not Complainant was aware of the application of 29 C.F.R. Part 24, OSHA, in its letter decision letter, OSHA expressly advised Complainant that he had a right to request a hearing and an obligation to provide Respondent with a copy of his request for hearing. Having participated in a conference call with Complainant, and having read the various submissions he has filed in this matter, I believe he understands the nature of these proceedings and was fully capable of understanding and complying with the instructions set forth in OSHA's letter. To the extent Complainant may have felt the need for further assistance, OSHA provided him with a telephone number and invited him to call the Deputy Regional Administrator if he had any questions regarding her communication.
