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: 12Feb2002
CASE NOS.: 2002-STA-0018
2002-STA-0019
In the Matter of:
DANIEL S. SOMERSON,
Complainant
v.
MAIL CONTRACTORS OF AMERICA,
Respondent
ORDER CERTIFYING FACTS TO THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
In Re: Mr. Daniel S. Somerson
1126 Monterey Street
Jacksonville, Florida 32207
Pursuant to 29 C.F.R. § 18.29(b) the following facts are hereby certified to the United States District Court for the Middle District of Florida, with a request for appropriate remedies:
1. Complaints were filed on August 16 and October 27, 2001, under § 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, by Mr. Daniel S. Somerson, Complainant, versus Mail Contractors of America, Respondent.
2. These "whistleblower" complaints were investigated by the U.S. Department of Labor, Occupational Safety and Health Administration and were forwarded to the Department of Labor Office of Administrative Law Judges for formal hearing on the merits of the complaints.
3. The cases were assigned to the undersigned Administrative Law Judge, and a Notice of Assignment and Pre-Hearing Order was issued on December 21, 2001 (Exhibit 1). The order, inter alia, instructed the parties that filings by facsimile would not be permitted, but instead, must be submitted by U.S. Mail with an attestation showing service on all parties. It is noted that on December 19, 2001, John M. Vittone, Chief Administrative Law Judge, had issued a letter to Mr. Somerson restricting his contact with personnel in the Office of Administrative Law Judges due to his abusive conduct (Exhibit 2).
[Page 2]
4. On December 23, 2001, Mr. Somerson (who is pro se), submitted a response to the December 21, 2001, order by facsimile (Exhibit 3), stating that "I am disregarding your order that all of my correspondence will be via US MAIL. This isn't going to happen." (Emphasis as in original). Additionally, Mr. Somerson stated, "Therefore, I invite you Judge, to quell my complaint by refusals to accept my faxed documents and effectively disable my case and undermine my civil rights. Do it." (Emphasis as in original). Mr. Somerson further referred to the U.S. Department of Labor ARB1as "jarheads" and "gangsters" and asserted possession of information that the Chairman of the ARB practiced in a law firm that has ties to organized crime (Exhibit 3).
6. On January 3, 2002, Mr. Somerson submitted by fax a letter (Exhibit 5) 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). (Exhibit 5).
7. 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 attached as Exhibit 6.2
10. 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. (Exhibit 6, pages 9-12).
11. 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, Exhibit 2 above). 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?
Exhibit 6, page 16, line 22 to page 17 line 3.
12. 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. (Exhibit6, 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] ?"
13. 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. (Exhibit 6, page 18).
14. 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. (Exhibit 6, page 20-21).
[Page 5]
15. Following that exchange, the process of identifying the complaints and issues to be considered resumed (Exhibit 6, 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.
16. 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." (Exhibit 6, 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.
Exhibit 6, page 25, lines 11-15.
17. 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." (Exhibit 6, page 27).
18. 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." (Exhibit 6, page 28).
19. Therefore, the nature and issues of a whistleblower complaint under the STAA were then explained to Mr. Somerson. (Exhibit 6, 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). (Exhibit 6, page 30).
[Page 6]
20. 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." (Exhibit 6, page 31-32).
21. 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. Marshall's 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..."
(Exhibit 6, page 32-33).
22. 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 as exhibits for service on all parties.
23. Following this Judge's return to Newport News, Virginia, Mr. Somerson telephoned on February 7, 2002, requesting to speak with the Judge or a member of his staff. The call was transferred to a law clerk, who summarized the call as follows:
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.
[Page 7]
Memorandum from Attorney Advisor. (Exhibit 7).
24. 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. (Exhibit 8).3
It is therefore, Ordered that these facts are hereby certified to the United States District Court for the Middle District of Florida pursuant to 29 C.F.R. § 18.29(b). It is respectfully requested that appropriate action be taken as if the trial of this case had occurred before the United States District Court.
Richard E. Huddleston
Administrative Law Judge
[ENDNOTES]
1 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.
2 A copy of the audio tape made by the Court Reporter can be produced if it is needed.
3 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. which is attached as Exhibit 9.
