Whether Complainant's failure to comply with the regulatory mandate to serve notice of his appeal and request for a hearing upon Respondent deprives OALJ of jurisdiction over Complainant's appeal.

    After considering all of the documentary evidence of record, and the arguments and briefs of the parties, I have concluded that the evidence is sufficient to make a determination without hearing on the limited issue of whether failure to serve Respondent deprives OALJ of jurisdiction.

   An Administrative Law Judge with OALJ may enter summary judgment for a party if the pleadings, affidavits, material obtained by discovery, or other materials show that there is no genuine issue of material fact. 29 C.F.R. section 18.40; Federal Rule of Civil Procedure 56(c). The party moving for summary judgment has the burden of establishing the "absence of evidence to support the nonmoving party's case". Celotex Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In reviewing a request for summary judgment, I must view all of the evidence in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 262 (1986).

   I find that there is no genuine issue of material fact regarding the issue of whether Respondent was served by Complainant. Whether failure to comply with the regulations requiring service deprives OALJ of jurisdiction is a question of law that may be decided in response to Respondent's motion, and summary decision without a hearing is appropriate in this case.

    The regulations set forth at 29 C.F.R. §§ 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 (employer), as appropriate, on the same day that the hearing is requested, by facsimile (fax), telegram, hand delivery, or next-day delivery service...

    In its December 19, 2003, Notice of Determination, OSHA advised Complainant that he must file an appeal with the Chief Administrative Law Judge and the Regional Administrator within five calendar days of the receipt of the notification by facsimile, overnight/next day delivery mail, or by telegram. Complainant has stated that he received OSHA's correspondence on December 27, 2003. Copies of the Notice, and correspondence to Respondent and Complainant, were docketed by OALJ on December 29, 2003. Complainant's letter to OALJ was received on January 5, 2003, and, therefore, it may be inferred that it was mailed within 5 business days as required by the regulations. Respondent has not contended that the appeal was untimely filed.

    Acknowledging that he did not mail Respondent notice of his appeal, Complainant contends that he followed the service instructions set forth in OSHA's Notice of Determination, which directed him to serve his appeal on the Chief ALJ and the Regional Administrator. Complainant's Brief at 8. I decline to relieve Complainant of his obligation to serve notice upon Respondent despite the absence of reference to this regulatory requirement in OSHA's Notice of Determination. I construe the regulations to clearly require Complainants to comply with the service requirements set forth therein to perfect their appeals. The regulations explicitly provide that the Notice of Determination shall become the final order of the Secretary unless Complainant's appeal is filed in a timely fashion and served on the opposing party by "facsimile (fax), telegram, hand delivery, or next-day delivery service..." 29 C.F.R. §§ 24.4(d)(2)(3). The enumerated methods of serving notice upon Respondents clearly demonstrate that timely notice to Respondents is significant to the Secretary, and compliance must be achieved to provide Respondents the opportunity to respond to the appeal.

    I find that the time and manner requirements pertaining to servicing notice on Respondents are substantive and mandatory. In the absence of compliance by Complainant with the rule, the Notice of Determination is the final order of the Secretary, and I have no jurisdiction over Complainant's appeal. In reaching this conclusion, I am persuaded by the Decisions and Orders entered in two cases with similar facts. In Webb v. Numanco, L.L.C. 1998-ERA-00029 (ALJ July 17, 1998) Judge Daniel Roketenetz observed that the pertinent regulation, 29 C.F.R. Section 24.4, was amended to impose more stringent service requirements. Id at 5. The judge asserted "[a]s stated in the explanatory notes to the promulgated regulations, ‘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.' The compulsory language of the regulation in the context of the underlying intent of the language leaves little room for interpretation." Id. (quoting 63 Fed. Reg. 6613, at 6617 (Feb. 9,1998)).

    In Cruver v. Burns Int'l, 2001-ERA-31 (ALJ Dec. 5, 2001), Judge Stuart Levin relied upon Judge Roketenetz' reasoning in a case wherein the complainant failed to serve respondent with a copy of his request for hearing. Judge Levin granted Respondent's motion to dismiss the complaint, noting that the lack of service defeated jurisdiction in the matter. Id. at 2. Judge Levin observed that the regulations were amended to make service on the opposing party on the same day mandatory. He stated that 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." Id. at 3. Judge Levin concluded that "notifications to the chief judge and the opposing party is a jurisdictional prerequisite to perfecting an appeal." Id. at 4.

   The facts of the instant matter are virtually indistinguishable. In Cruver, supra., Complainant argued that his appeal should stand because he was not represented and his oversight caused respondent no prejudice or undue hardship. Id. at 2. Mr. Shirani similarly posits that his "former status as a pro se litigant is a fair consideration in determining whether to dismiss a complaint." Complainant's brief at 10. He further stated that his "failure to comply with the relevant rules of service is an inadvertent mistake that can, and should, be cured." Id. at 8. Complainant also contends that granting dismissal based on this procedural defect would violate due process. Id. at 9. I must disagree with Complainant's characterization of his failure as a procedural defect, because I concur with the finding by Judges Roketenetz and Levin that failure to comply with the regulatory notice requirements deprives me of jurisdiction to hear Complainant's appeal. Moreover, Complainant's failure to notify Respondent of his appeal prejudices Respondent, which, in the absence of such notice, had every reason to believe that the Notice of Determination issued by OSHA became the Secretary's final order.

   Pursuant to 29 C.F.R. section 24.6(e)(4) Dismissal for cause:

(i) The administrative law judge may, at the request of any party, or on his or her own motion, issue a recommended decision and order dismissing a claim…

(ii) In any case where a dismissal of a claim, defense, or party is sought, the administrative law judge shall issue an order to show cause why the dismissal should not be granted and afford all parties a reasonable time to respond to such order...

    On March 9, 2004, I issued an Order to Show Cause why the instant matter should not be dismissed because of Complainant's failure to send notice to Respondent of his appeal and request for hearing before OALJ. Both parties filed written argument in support of their positions. In consideration of the filings of the parties, and the plain meaning of the regulations at issue, I find that Complainant has not shown good cause why his appeal should not be dismissed. Complainant failed to perfect a timely appeal in this matter by failing to serve his request for appeal and hearing upon Respondent in a timely or acceptable manner. Accordingly, I am without jurisdiction to hear Complainant's appeal and OSHA's determination should be the final order of the Secretary.

   It is hereby recommended that the appeal and request for hearing filed by Oscar Shirani be dismissed and the determination rendered by OSHA be recognized as the final order of the Secretary.

       Janice K. Bullard
      Administrative Law Judge

Cherry Hill, New Jersey

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. section 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See, 29 C.F.R. sections 24.7(d) and 24.8.