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| October 3, 2008 DOL Home > OALJ Home > Whistleblower Collection |  |
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USDOL/OALJ STAA Whistleblower Digest DIVISION XI -- DISMISSALS [Last updated April 7, 2008]
[STAA Digest XI A 1]
In Hutchins v. TNT Logistics, ARB No. 05-065, ALJ No. 2004-STA-9 (ARB Jan. 31, 2008), the ARB held that it must issue the final order where the complainant requests to withdraw his objections to the Secretary’s preliminary findings. In so holding, the panel declined to follow the 1987 holding of the Secretary of Labor in Underwood v. Blue Springs Hatchery, 1987-STA-21 (Sec’y Sept. 23, 1987) -- an Order to Show Cause --stating that an ALJ’s order approving a withdrawal becomes the final administrative order in a case. One member of the panel concurred with the approval of the withdrawal, but forcefully argued that the panel did not have the authority to overrule Underwood without the participation of all members of the Board, that the panel had misinterpreted the regulations, and that the ALJ’s order approving the withdrawal should have been the final order in the case.
[STAA Digest XI A 1]
In Thompson v. Inland Northwest Dairies, LLC, ARB No. 07-085, ALJ No. 2007-STA-31 (ARB July 31, 2007), the ALJ issued a "Notice of Trial, Order to Show Cause Why Case Should Not Be Dismissed for Failure to Make Out a Prima Facie Case, and Pre-Trial Order." In response, the Complainant faxed a document withdrawing his appeal. The ALJ then issued a recommended order dismissing the complaint for lack of prosecution. Upon automatic review, the ARB found that the proper procedure under the STAA regulation at 29 C.F.R. § 1978.111(c) was to grant the request to withdraw the appeal (i.e., the Complainant's objections to OSHA's findings), and affirm the OSHA findings. The ARB, however, found that the error was harmless because it reviews an ALJ's legal conclusions de novo and is required to issue the final decision in STAA cases.
XI A 1 Effect of voluntary
dismissal without
prejudice "A voluntary dismissal without prejudice leaves the situation as if the action had never been filed." 9 C. Wright & Miller, Federal Practice and Procedure: Civil, § 2367 (1971). The statute of limitations is not tolled by a dismissal without prejudice. Id. at 185-6. Hester v. Blue Bell Services, 1986-STA-11 (Sec'y July 9, 1986).
[STAA Whistleblower Digest XI A 1]
In Wallace v. R & L Carriers, ARB No. 04-098, ALJ No. 2002-STA-40 (ARB Aug. 30, 2005), the ARB affirmed the ALJ's treatment of the Complainant's notice that he wished to withdraw his request for a hearing in order to pursue possible state remedies as a request to withdraw objections to the Area Director's findings under 29 C.F.R. § 1978.111(c).
[STAA Digest XI A 1]
In Hardy v. Environmental Restoration, LLC, ARB No. 05-019, ALJ No. 2004-STA-20 (ARB Jan. 11, 2005), the Complainant made an unequivocal withdrawal of his complaint during a telephone conference with the ALJ. The ALJ treated the unequivocal withdrawal as the equivalent of a written statement of intent to withdraw objections to the OSHA findings. Upon automatic review, the Board issued a briefing schedule. The Respondent informed the Board that it agreed with the ALJ's recommended decision and would not be filing a brief. The Complainant did not respond. The Board held that "pursuant to the plain language of 29 C.F.R. § 1978.111(c), the ALJ should have required [the Complainant] to submit a written withdrawal. But given [the Complainant's] failure to object to this deviation from the regulation in a brief to this Board, we find the ALJ's departure from the regulation to be harmless error." Slip op. at 3 (footnote omitted). The Board therefore approved the recommended order and dismissed the complaint. This case also stands for the proposition that the ARB must issue the final order, even when a complaint is withdrawn (overrules prior authority). See also Elliot v. Chris Truck Line, ARB No. 04-132, ALJ No. 2002-STA-43 (ARB Jan. 28, 2005) (Complainant withdrew; more than 1 1/2 years elapsed before case was transferred to ARB for automatic review and issuance of final order).
[STAA Digest XI A 1]
When OSHA has found against a complainant and the complainant withdraws his objections to the findings, the result is a final order upholding the OSHA findings. The ALJ's dismissal of the matter under such circumstances is "with prejudice" insofar as a complainant could not thereafter refile a complaint in the DOL alleging the same facts. Sabin v. Yellow Freight System, Inc., ARB No. 04-032, ALJ No. 2003-STA-5 (ARB July 29, 2005).
[STAA Whistleblower Digest XI A 1]
In Ass't Sec'y & Boyd v. Palmentere Brothers Cartage Service, Inc., ARB No. 04-135, ALJ No. 2003-STA-40 (ARB Oct. 27, 2004), Foley v. J.B. Hunt Transportation, Inc., ARB No. 04-080, ALJ No. 2004-STA-14 (ARB Oct. 27, 2004) and Pavon v. United Parcel Service, ARB No. 04-127, ALJ No. 2003-STA-46 (ARB Oct. 27, 2004), the complainants filed written notices of withdrawal and the ALJs dismissed the complaints pursuant to 29 C.F.R. § 1978.111(c). The ARB found that the ALJs' orders were subject to the automatic review provisions of 49 U.S.C.A. § 31105(b)(2)(C) and 29 C.F.R. § 1978.109(c)(1). The ARB's holding that there is automatic review by the ARB of voluntary withdrawals before the ALJ in STAA cases appears to overrule the Secretary of Labor's holdings in Shown v. Wilson Truck Corp., 1992-STA-6 (Sec'y Apr. 30, 1992) and Creech v. Salem Carriers, Inc., 1988-STA-29 (Sec'y Sept. 27, 1988). In Creech, the Secretary held that where the ALJ enters an order allowing the complainant to withdraw objections to the Secretary's preliminary findings and order "the ALJ's order becomes the final administrative order in the case, and there is no need for review of the ALJ's order by the Secretary." In Shown, the Secretary in a footnote criticized the ALJ for not following the Creech procedure.
XI A 1 Voluntary dismissal A claimant's motion for voluntary dismissal in effect constitutes a withdrawl of his claim under the provisions of 29 C.F.R. §1978.112(c), which also provides for the ALJ's affirmance of the findings of the Regional Administrator. Slaughter v. Pie Nationwide, 89-STA-13 (Sec'y Feb. 23, 1990). XI A 1 Applicability and application of Rule 41 Paraphrased from Hester v. Blue Bell Services, 86- STA-11 (Sec'y July 9, 1986): Rule 41 of the Federal Rules of Civil Procedure governs the voluntary dismissal of requests STAA complaints because the OALJ Rules of Practice and Procedure do not provide for such but only dismissals of requests for hearings (29 C.F.R. § 18.39(b) -- which leaves in effect the preliminary order, and not does cause the automatic dismissal of the complaint. Rule 41(a)(1) permits dismissal without prejudice without order of a court by the filing of a notice of dismissal at any time before an answer to the complaint has been filed or by the filing of a stipulation of dismissal signed by the parties. Where the respondent denies the allegations of the complaint prior to the motion, it has in effect filed an answer. Rule 41(a)(2) permits dismissal without prejudice upon order of the court and upon such terms and conditions as the court deems proper. Under Rule 41(a)(2):
6 J. Moore, W. Taggert & J. Wicker, Moore's Federal Practice, § 41.06 (2d ed. 1981). Accord McCants v. Ford Motor Co., Inc., 781 F.2d 855, 860 (11th Cir. 1986); American Cynamid Co. v. McGhee, 317 F.2d 295, 298 (5th Cir. 1963); Bishop v. West American Insurance Co., 95 F.R.D. 494, 495 (N.D. Ga. 1982). [Editor's note: By implication, the Secretary has also held that in an STAA case, the respondent's objections to the preliminary findings constitute an answer. Sharp v. James Helwig & Son, Inc., 90-STA-30 (Sec'y Jan. 18, 1991). Hester appears to conflict with decisions such as Snow v. Red Star Express, Inc., 91-STA-44 (Sec'y Mar. 13, 1992), which indicate that a complainant cannot withdraw a STAA complaint after the case is before the ALJ, but can only withdraw objections to the Secretary's preliminary findings or order pursuant to 29 C.F.R. § 1978.111(c). Hester was decided prior to the effective date of the STAA regulations.] 11 A 1 Withdrawal before the Secretary The regulations at 29 C.F.R. §1978.111(c) provide that upon the filing of a written withdrawal by a complainant, if the case is on review with the Secretary, the Secretary shall affirm any portion of the findings or preliminary order of the Regional Administrator with respect to which the objection was withdrawn. Patterson v. EEX, Inc., 89-STA-18 (Sec'y May 4, 1990). XI A 1 Withdrawal of objections to preliminary findings, not of complaint Neither the STAA nor the implementing regulations at 29 C.F.R. Part 1978 (1987) provide for the withdrawal of complaints by an individual complainant. The ALJ, therefore, erred in Creech v. Salem Carriers, Inc., 88-STA-29 (Sec'y Sept. 27, 1988), in allowing the Complainant to withdraw his complaint and in ordering dismissal of the complaint. Section 1978.111(c), however, 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. When such withdrawal occurs before the ALJ or the Secretary, it is required that an order be issued affirming "any portion of the findings or preliminary order with respect to which the objection was withdrawn." 29 C.F.R. § 1978.111(c). If the case is before the ALJ, the ALJ's order becomes the final administrative order in the case, and there is no need for review of the ALJ's order by the Secretary. Underwood v. Blue Springs Hatchery, 87-STA-21 (Sec'y Sept. 23, 1987) (order to show cause). In Creech, the Complainant's notice to the effect that he was dropping his charges against the Respondent constituted a withdrawal of his objections to the preliminary findings. The ALJ, consequently, should have issued an order affirming the preliminary findings. XI A 1 Withdrawal of complaint; ALJ should reinstate and affirm Assistant Secretary's findings; order is final The STAA regulations at 29 C.F.R. § 1978.111(c) provide that if a party files a written withdrawal of his objections, "[t]he judge or the Secretary, as the case may be, shall affirm any portion of the findings or preliminary order with respect to which the objection was withdrawn." Where the complainant filed a letter with the ALJ withdrawing his "complaint," this letter constituted a withdrawal of his objections, see Snow v. TNT Red Star Express, Inc., 91-STA-44 (Sec'y Mar. 13, 1992), slip op. at 2-3, and the ALJ should have affirmed the preliminary findings, by which the order of dismissal would have become the final administrative order in the case. Because the ALJ issued a Recommended Order of Dismissal, the Secretary, in the interest of administrative efficiency, treated complainant's withdrawal as occurring before her, reinstated and affirmed the Assistant Secretary's findings, and "denied" the complaint. Shown v. Wilson Truck Corp., 92-STA-6 (Sec'y Apr. 30, 1992). XI A 1 Withdrawal of STAA complaint before ALJ improper; proper procedure is withdrawal of objections to preliminary findings Since neither the STAA nor the implementing regulations at 29 C.F.R. Part 1978 (1987) provide for the withdrawal of complaints by an individual complainant, it is error to allow a complainant to withdraw his complaint and order dismissal of the complaint. Rather, section 1987.111(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. When such withdrawal occurs before the ALJ or the Secretary, it is required that an order be issued affirming "any portion of the findings or preliminary order with respect to which the objections was withdrawn." 29 C.F.R. 1987.111(c). If the case is before the ALJ, the ALJ's order becomes the final administrative order in the case, and there is no need for Secretarial review of the ALJ's order. Underwood v. Blue Springs Hatchery, 87-STA-21 (Sec'y Sept. 23, 1987) (order to show cause). Creech v. Salem Carriers, Inc., 88-STA-29 (Sec'y Sept. 27, 1988). XI A 1 Withdrawal results in reinstatement of RA's determination Where prior to the scheduled hearing Complainant submitted a letter withdrawing his request for a hearing and his complaint under the STAA, the ALJ noted that pursuant to 29 C.F.R. § 1978.111(c), the withdrawal had the effect of affirming the Regional Administrator's finding the complaint lacked merit and dismissal of the complaint. The Office of Administrative Appeals issued a Notice of Case Closing advising the parties "that the case is closed pursuant to the ALJ's final order." Hall v. Yellow Freight Systems, 93-STA-24 (Sec'y July 1, 1993). XI A 1 Withdrawal in STAA case is withdrawal of objections, not of complaint In Mysinger v. Rent-A-Driver, 90-STA-23 (Sec'y Sept. 21, 1990), the Complainant and his counsel did not appear at the hearing and the ALJ issued an order to show cause. The Complainant responded and stated that he was willing to drop everything. The ALJ construed this as a voluntary withdrawal and recommended dismissal of the complaint. The Secretary agreed with the ALJ that the Complainant was requesting withdrawal of the complaint, but found that the regulations did not permit withdrawal of the complaint but only withdrawal of objections to the Secretary's preliminary findings. 29 C.F.R. § 1978.111(c). Hence, the proper procedure in this circumstance is to construe the request as a withdrawal of objection to the Secretary preliminary findings, and to issue an order reinstating and affirming those findings. In Hester v. Blue Bell Services, 86-STA-11 (Sec'y July 9, 1986), slip op. at 4-5 n.3, it is implied that an ALJ should ascertain whether a pro se Complainant is aware of the effects of a request for dismissal.
[STAA Digest XI A 3]
Where a complainant files a motion to withdraw a STAA whistleblower complaint, such a motion may be treated under the regulations as a motion to
withdraw objections to the OSHA findings. In such circumstances, however, the ALJ should confirm with the complainant
that he understands that the complaint cannot be withdrawn, and that instead, by withdrawing his objections to
OSHA's findings, those findings would stand as affirmed. Drake v. Yellow Transportation, ARB No. 05-067, ALJ No. 2005-STA-3 (ARB July 14, 2006). PDF |
HTM
XI A 3 Withdrawal by complainant
acting alone See Hester v. Blue Bell Services, 86-STA-11 (Sec'y July 9, 1986), indicating that a voluntary dismissal by the complainant acting alone is handled under Fed. R. Civ. P. 41(a)(2). See also Creech v. Salem Carriers, Inc., 88-STA-29 (Sec'y Sept. 27, 1988), indicating that such a withdrawal technically acts as a withdrawal of objections to the Secretary's preliminary findings or preliminary order under 29 C.F.R. 1978.111(c); Shown v. Wilson Truck Corp., 92-STA-6 (Sec'y Apr. 30, 1992), indicating that in this circumstance, the ALJ should issue a final order reinstating and affirming the preliminary findings. XI A 3 Complainant's voluntary dismissal In Lizotte v. Road and Sea Transport, Inc., 95-STA- 13 (Sec'y July 26, 1995), the Complainant moved to dismiss with prejudice after two days of hearing. The Secretary approved dismissal pursuant to 29 C.F.R. § 24.5(e)(4)(iii). See Monroe v. QJ Transfer and Storage, 89-STA-4 (Sec'y July 11, 1989), indicating that where there is stipulated withdrawal, Fed. R. Civ. P. 41(a)(1)(ii) applies.
[STAA Digest XI A 4] In Drake v. Yellow Transportation, ARB No. 05-110, ALJ No. 2005-STA-26 (ARB July 18, 2006), PDF | HTM the parties filed a Joint Stipulation of Dismissal Without Prejudice. The ARB approved the request, citing as authority FRCP 41(a)(1)(ii).
[STAA Digest XI A 4]
In Green v. Deffenbaugh Disposal Services, ARB No. 05-034, ALJ No. 2004-STA-50 (ARB Feb. 28, 2005), the ARB assumed that no settlement underlied a joint stipulation of dismissal with prejudice which did not refer to a settlement, even though the Complainant had indicated a desire to settle in a telephone conference call the prior week, "since [a settlement] would have to be submitted to the ALJ for approval and then approved by the Administrative Review Board. See 29 C.F.R. § 1978.111(d)(2)."
[STAA Digest XI B 1]
In Tevepaugh v. J & B Express Trucking, ARB No. 07-099, ALJ No. 2006-STA-50 (ARB Nov. 29, 2007), the ARB accepted the ALJ’s recommendation of dismissal of the complaint where the Complainant repeatedly failed to comply with procedural orders, neither appeared nor explained his absence from the hearing, did not respond to an order to show cause issued by the ALJ, and did not take the opportunity to explain his actions to the Board. The ARB concluded that the Complainant had abandoned his claim, and therefore dismissed the complaint.
[STAA Digest XI B 1]
In Rose v. ATC Vancom, Inc., ARB No. 05-091, 2005-STA-14 (ARB Aug. 31, 2006),
PDF |
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the ARB found that the ALJ properly found that the Complainant abandoned his complaint when he did not respond to any to the ALJ's lawful prehearing orders, including an order warning that that the complaint could be dismissed if the ALJ's orders were not complied with.
XI B 1 Abandonment
In Winkler v. Roadway Express, Inc., 84-STA-18
(Sec'y Nov. 18, 1985), the Secretary adopted the ALJ's
recommended order of dismissal for lack of prosecution, citing 29
C.F.R. § 18.39(b) (1985), and agreeing that Complainant's
actions and statements constituted abandonment.
In an earlier order of remand, however, the Secretary did not
adopt the ALJ's order dismissing complaint based on lack of
prosecution under section 18.39(b) because, in the ALJ's view,
Complainant had advised in a motion that he did not intend to
prosecute his case at the hearing. The Secretary concluded on
review of Complainant's motion that there was not sufficient
ground to anticipate abandonment. Winkler v. Roadway
Express, Inc., 84-STA-18 (Sec'y June 28, 1985).
[STAA Digest XI B 1]
In Berg v. Swift Transportation, ARB No., 07-046, ALJ No. 2006-STA-13 (ARB Feb. 28, 2007),
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the ARB affirmed the ALJ's recommended order of dismissal based on the Complainant's abandonment of the complaint. The Complainant had repeatedly failed to comply with procedural orders and neither appeared for nor explained his absence from the hearing. The ARB noted that "[d]ismissal as a sanction for failure to prosecute is a matter within the sound discretion of the administrative law judge. "
[STAA Digest XI B 1]
In Rippley v. National Equipment Services, Inc., ARB No., 06-015, ALJ No. 2005-STA-58 (ARB Feb. 27, 2007),
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the ARB affirmed the ALJ's recommended order of dismissal based on the Complainant's abandonment of the complaint. The Complainant had repeatedly failed to comply with procedural orders and neither appeared for nor explained his absence from the hearing. The ARB noted that "[d]ismissal as a sanction for failure to prosecute is a matter within the sound discretion of the administrative law judge. "
[STAA Digest XI B 1]
In Ferguson v. Bomac Lubricant Technologies, Inc., ARB No. 04-057, ALJ No. 2002-STA-27 (ARB June 29, 2005), the ALJ had continued the hearing in light of the Respondent's bankruptcy. The ALJ later issued an order directing a status report; the Respondent reported that the Bankruptcy Court had ordered sale of all its operating assets and that it had been informed that the proceeds all went to secured creditors and administrative expenses in the bankruptcy cases, with nothing left for distribution to unsecured creditors, including the Complainant. Later, the Complainant's counsel informed the ALJ that he had been unable to contact the Complainant. The ALJ then issued an order to show cause why the complaint should not be dismissed, warning that if the Complainant failed to respond, he would entertain a motion to dismiss the complaint. The Complainant did not reply and the ALJ issued a recommended order of dismissal. Upon automatic review, the ARB issued a Notice of Review and Briefing Schedule, of which the Complainant acknowledged receipt by signing a certified mail Domestic Return Receipt. The Complainant did not respond to the ARB's Notice.
Consequently, the ARB affirmed the ALJ's dismissal for want of prosecution.
[STAA Whistleblower Digest XI B 1]
In Berna v. USF Dugan, Inc., ARB No. 04-121, ALJ No. 2003-STA-7 (ARB Oct. 27, 2004), the ALJ had issued an order to show cause why the complaint should not be dismissed on the ground of abandonment where the Complainant had not responded to the Respondent's discovery requests. The Complainant phoned the ALJ's office and stated that he wished to withdraw the case. Although requested to do so, he did not submit a written withdrawal. The ALJ, therefore, dismissed the case for abandonment.
The ARB determined that pursuant to 29 C.F.R. § 1978.109(a), the ALJ's decision and the record were to be forwarded immediately to the Administrative Review Board for automatic review and to issue a final decision. Pursuant to 29 C.F.R. § 1978.109(c)(1), the Board is required to issue a final decision and order based on the record and the decision and order of the ALJ.
After a delay in transmittal of the file, the Board issued a Notice of Docketing and Order to Show Cause, to which only the Respondent responded. The Board, therefore approved the ALJ's dismissal of the complaint.
[STAA Whistleblower Digest XI B 1]
In Fish v. Raymond Cossette Trucking, ARB No. 03 047, ALJ No. 1997 STA 32 (ARB Mar. 24, 2004), the ALJ had stayed the STAA whistleblower proceedings pending the outcome of the Respondent's bankruptcy proceeding. After the final bankruptcy report stated that the Respondent had no remaining assets, the ALJ issued an order to show cause why the case should not be dismissed. Neither party responded. On review, the ARB issued a briefing schedule to which neither party responded. The ARB therefore affirmed the ALJ's dismissal on the ground of abandonment.
To similar effect Kruml v. Patriot Express
[STAA Whistleblower Digest XI B 1]
In Farrar v. Roadway Express, Inc., ARB No. 03 031, ALJ No. 2001 STA 58 (ARB Mar. 30, 2004), the ARB affirmed the ALJ's dismissal of a STAA complaint where the Complainant failed to attend the hearing and failed to show cause for that failure.
[STAA Whistleblower Digest XI B 1]
Where the facts dictate that a party has failed to prosecute his or her case, the ARB will affirm an ALJ's recommended decision and order on grounds of abandonment. Ass't Sec'y & Reichelderfer v. Bridge Transport, Inc., ARB No. 02 068, ALJ No. 2001 STA 40 (ARB Aug. 29, 2003) (parties' requested a settlement judge, but Respondent discharged its counsel prior to appointment of a settlement judge and did not respond to further contacts by the ALJ and ARB); LaRue v. KLLM Transport Inc., ARB No. 02 024, ALJ No. 2001 STA 54 (ARB July 22, 2003) (Complainant failed to attend scheduled hearing and did not respond to ALJ's subsequent order to show cause); Dickson v. Lakefront Lines, Inc., ARB No. 02 029, ALJ No. 2001 STA 62 (ARB July 24, 2003) (Complainant refused service of ALJ order granting a continuance and on three occasions refused to accept service of motions filed by Respondent); Dickson v. Butler Motor Transit/Coach USA, ARB No. 02 098, ALJ No. 2001 STA 39 (ARB July 25, 2003) (Complainant failed to comply with ALJ's discovery orders).
[STAA Whistleblower Digest XI B 1] In Farrar v. Roadway Express, Inc., 2001 STA 58 (ALJ Dec. 13, 2002), on the day and time scheduled for hearing, Respondent and its witnesses were in attendance and ready for trial. Complainant's counsel was in attendance, but Complainant phoned in to state that he was on a run and would not be able to attend. Respondent moved for dismissal, alleging that Complainant had ample vacation and compensatory time available. The ALJ issued an order to show cause, and weighing the conflicting responses found that Complainant had not asked for time off in advance or provided any notice that he needed the time off, and had sufficient vacation time available. The ALJ found a lack of good cause for failure to appear, and recommended dismissal of the complaint.
[STAA Digest XI B 1]
The ARB, observing that "[l]ike the courts, the Department of Labor's Administrative Law Judges and this Board must necessarily manage their dockets in an effort to 'achieve the orderly and expeditious disposition of cases,'" ruled that it "will affirm an ALJ's Recommended Order of Dismissal on the grounds of abandonment, where the facts dictate that a party has failed to prosecute his or her case." Curley v. Grand Rapids Iron & Metal, ARB No. 00-013, ALJ No. 1999-STA-39 (ARB Feb. 9, 2000).
[STAA Digest XI B 1]
In Aldasch v. Coca Cola Enterprises, ARB No. 99-093, ALJ No. 1999-STA-24 (ARB July 21, 1999), neither Complainant nor a representative for Complainant appeared at the hearing. Respondent whose attorney had traveled from Nashville, Tennessee to Syracuse, New York to attend the hearing with three officials from Respondent who were to be called as witnesses moved to dismiss. Respondent's counsel stated in support of the motion that he telephoned Complainant's current employer, who informed him that Complainant was at work and making a delivery. The ALJ issued an order to show cause, and receiving no response, concluded that Complainant had abandoned his request for a hearing. The ALJ therefore recommended dismissal under 29 C.F.R. § 18.39(b). The ARB issued an order permitting the parties to brief the matter on review, but no party responded. Finding no excuse in the record for Complainant's failure to appear at the scheduled hearing, the ARB adopted the ALJ's recommendation of dismissal.
[STAA Digest XI B]
In Somerson v. Yellow Freight System, Inc., 1998-STA-9 and 11 (ALJ Feb. 18, 1999), Complainant Somerson appeared pro se in his own case and acted as his co-Complainant's representative. The ARB declined to adopt Respondent's urging to dismiss both complaints on the ground that Somerson repeatedly engaged in improper conduct during the hearing before the ALJ. The ARB found little doubt that Somerson "engaged in defiant and impertinent conduct that hindered his ability to present a coherent case, and would have resulted in disciplinary action in a federal district court." The ARB also found that the ALJ clearly would have been acting within his authority under OALJ Rule of Practice 29 C.F.R. §18.36, had he barred Somerson from the proceeding. The ALJ, however, attempted to persuade Somerson to comply with standards of proper conduct; the ARB found that, clearly, the ALJ allowed the proceeding to continue in order to leave no doubt that the Complainants had their day in court. The ARB stated that it "deplore[d] the manner in which Somerson disrupted the hearing, and abused the parties, witnesses, and ALJ in this case. However, we are not in a position to second guess the ALJ's decision regarding how to control his courtroom. Moreover, there is no regulation that would allow this Board to impose the sanction of dismissal for improper conduct, per Yellow Freight's motion." XI B 1 Failure to appear at hearing When a Complainant fails to appear at a hearing, the appropriate regulatory authority for dismissal for failure to appear is found at 29 C.F.R. § 24.5(e)(4)(i). Colantonio v. R.W. Trucking, 93-STA-25 (Sec'y Jan. 24, 1994). XI B 1 Abandonment based on failure to keep OALJ informed of status of bankruptcy proceeding In McGinnis v. Transcon Lines, Inc., 90-STA-39 (ALJ Apr. 26, 1993), the ALJ recommended that the Secretary enter an order finding that the Complainant has abandoned his request for a hearing because the Complainant did not respond to the ALJ's earlier Order to Show Cause. The Order to Show Cause was based on the Complainant's lack of diligence in apprising OALJ of his efforts to obtain leave from the bankruptcy court to pursue his whistleblower complaint. The ALJ noted that in accordance with Steigerwald v. Robbins Trans., Inc., 91-STA-35 (Sec'y Nov. 21, 1991), in STAA cases an abandonment results in the transformation of the Regional Administrator's preliminary findings and order into the final order in the case. XI B 1 Abandonment In Jones v. Jupiter Chemical , Inc., 89-STA-5 (Sec'y Sep.20, 1989) the Complainant failed to attend the hearing because he was unwilling to proceed without his attorney, who had withdrawn from the case. Thereafter, he did not show cause for his failure to appear, and he declined to pursue his objections to OSHA's findings without being represented by appointed counsel, an option which is not available in STAA proceedings. Neither the Complainant nor his representative notified the ALJ prior to the date scheduled for the hearing of any inability on their parts to appear. Accordingly, the Secretary dismissed the case and deemed the Assistant Secretary for OSHA's findings and order unopposed. XI B 1 Abandonment for failure to discuss pre-hearing matters This case was set for hearing before an administrative law judge. The Complainant had requested a continuance, which was granted. The case was reassigned to a new ALJ. Repeated efforts to contact the Complainant to discuss pre-hearing matters, such as the time and place of the hearing, were unsuccessful. Pursuant to 29 C.F.R. §18.29(a), the Complainant was given 20 days to show good cause why his complaint should not be dismissed on grounds of abandonment. The Complainant failed to respond and his case was dismissed. Huber v. Gardner Asphalt Corp., 86-STA-19 (ALJ Jan. 26, 1987). XI B 1 Abandonment In Yocum v. National Steel & Tube Distributors, Inc., 89-STA-19 (ALJ May 7, 1993), the ALJ dismissed the case based on failure to prosecute and abandonment of the request for a hearing by the Complainant. In Yocum, two prior hearing had been scheduled by different ALJs. The first hearing was rescheduled because no representative for the Respondent attended. The Complainant failed to appear at the second hearing, and his response to the ALJ's order to show cause was that the Respondent was in bankruptcy. The case was continued on March 1, 1991. On April 19, 1993, a third ALJ issued an order to show cause why the claim should not be dismissed. The ALJ's attempts to contact the Complainant by certified mail were unsuccessful, and based on the Complainant's failure to attend the second scheduled hearing, the failure to maintain contact with the OALJ, and the failure to respond to the final order to show cause, the ALJ dismissed pursuant to 29 C.F.R. § 18.39(b) and Rule 41(b) of the Federal Rules of Civil Procedure (as made applicable by 29 C.F.R. § 18.1). In Yocum v. National Steel & Tube Distributors, Inc., 89-STA-19 (Sec'y July 1, 1993) (notice of case closing), the Office of Administrative Appeals stated that the ALJ's decision was final, citing 29 C.F.R. § 18.39(b). XI B 1 Abandonment where failure to attend hearing In Metcalfe v. A-1 Express, Inc., 92-STA-39 (ALJ Dec. 23, 1992), the Complainant failed to attend the hearing, did not respond to the ALJ's order to show cause, and was found to have abandoned his STAA complaint. The ALJ held that the preliminary findings of the Secretary are the final administrative order in the case, and dismissed the complaint, citing 29 U.S.C. § 2305(c)(2)(a); 29 C.F.R. § 1978.105(b)(2)). XI B 1 Dismissal of request for hearing In Harper v. Overland Express, Inc., 87-STA-19 (Sec'y Oct. 30, 1987), the ALJ issued a Recommended Order of Dismissal because of abandonment. While the Secretary agreed that Complainant abandoned his request for hearing, the Secretary noted that Section 18.39(b) of 29 C.F.R. does not provide for the dismissal of a complaint but only permits the dismissal of a request for a hearing. The Secretary determined that rather than recommending that the case be dismissed, the ALJ should have recommended that upon review by the Secretary and concurrence in the finding of abandonment, the preliminary findings and order be entered as the final administrative order. XI. B. 1. Abandonment In Miller v. Brenner Ice, Inc., 94-STA-10 (Sec'y July 26, 1994), the Respondents filed a timely objection to the Assistant Secretary's preliminary findings, but neither the Respondents nor any representatives of Respondents appeared at the hearing. The ALJ issued an order to show cause why a default judgment should not be entered against the Respondents pursuant to 29 C.F.R. § 18.39 and Part 1978. When there was no response, the ALJ issued a recommended decision and order accepting the preliminary findings as true based on the evidence presented at the hearing. The Secretary reserved the ALJ's recommended decision, but by certified mail. No response was filed. The Secretary agreed that 29 C.F.R. § 18.39(b) may be applied under the circumstances, and that the facts supported a finding of abandonment by the Respondents. The Secretary disagreed with a decision based on the evidence presented at the hearing. According to the Secretary, a finding of abandonment under section 18.39(b) permits dismissal of the request for a hearing. Dismissal of the request for a hearing operates to change the posture of the case to one where no request for a hearing has been filed. Where there is no request for a hearing, the statute decrees that the preliminary findings and order on the merits of the complainant be deemed the final administrative order. 49 U.S.C. app. § 2305(C)(2)(a); 29 C.F.R. § 1978.105(b)(2). Consequently, it was unnecessary for the ALJ to consider the merits of the case. The Secretary also noted that section 18.39(b), permitting the issuance of a default decision is inapplicable in these circumstances because of 49 U.S.C. app. § 2305(c)(2)(a). XI B 1 Dismissal for abandonment; whether ALJ's order is recommended or final In Brown v. Various Insulation Products, 94-STA-4 (Sec'y Apr. 3, 1995), the Acting Director of the Office of Administrative Appeals issued a Notice of Case Closing, stating without citation of authority that "[p]ursuant to the ALJ's order, this case is closed." The ALJ had dismissed the complaint based on the Complainant's delay, inaction and failure to respond when requested to advise the ALJ that he was prepared to proceed to hearing. [Editor's note: Although it may seem a tempest in a teapot, there has been inconsistent treatment of dismissals based on an abandonment which may lead to confusion about whether a complainant has the right to appeal such a dismissal. In Harper v. Overland Express Inc., 87-STA-19 (Sec'y Oct. 30, 1987) and Steigerwald v. Robbins Transp., Inc., 91-STA-35 (Sec'y Nov. 21, 1991), a literal interpretation of the regulations was adopted by the Secretary: the general rules of practice at 29 C.F.R. § 18.39(b) provide that upon abandonment, a party is deemed to have abandoned its request for a hearing; pursuant to 49 U.S.C. app. § 2305(c)(2)(A) (subsequently recodified as 49 U.S.C. § 31105(b)(2)(B)) and 29 C.F.R. § 1978.105(b)(2), the preliminary findings and order is deemed the final administrative complaint when no request for a hearing is filed. In Harper, the Secretary indicated that the ALJ should issue a recommended order of dismissal in an abandonment situation. In Yocum v. National Steel & Tube Distributors, Inc., 89-STA-19 (Sec'y July 1, 1993) (issued by OAA), the Office of Administrative Appeals issued a notice of case closing, stating that an ALJ's dismissal for abandonment was final under 18.39(b). In McGinnis v. Transcon Lines, Inc., 90-STA-39 (Sec'y July 22, 1993), however, issued only a few weeks after Yocum, the Secretary adopted an ALJ's recommendation of dismissal for abandonment. Because Brown and Yocum were issued by the Office of Administrative Appeals and not by the Secretary of Labor, at least arguably Harper and Steigerwald are still authoritative, and ALJ should recommend an order reinstating the initial findings as final when a complaint is abandoned rather than issuing a final order of dismissal. Even if later authority indicates that the ALJ should issue the final order, the ALJ's order should probably state that the initial findings are reinstated as the final order. This technical distinction is important because if the authority for dismissal is 49 U.S.C. § 31105(b)(2)(B), the Complainant has no right to judicial review of the dismissal.] XI. B. 1. Abandonment In Miller v. Brenner Ice, Inc., 94-STA-10 (Sec'y July 26, 1994), the Respondents filed a timely objection to the Assistant Secretary's preliminary findings, but neither the Respondents nor any representatives of Respondents appeared at the hearing. The ALJ issued an order to show cause why a default judgment should not be entered against the Respondents pursuant to 29 C.F.R. § 18.39 and Part 1978. When there was no response, the ALJ issued a recommended decision and order accepting the preliminary findings as true based on the evidence presented at the hearing. The Secretary reserved the ALJ's recommended decision, but by certified mail. No response was filed. The Secretary agreed that 29 C.F.R. § 18.39(b) may be applied under the circumstances, and that the facts supported a finding of abandonment by the Respondents. The Secretary disagreed with a decision based on the evidence presented at the hearing. According to the Secretary, a finding of abandonment under section 18.39(b) permits dismissal of the request for a hearing. Dismissal of the request for a hearing operates to change the posture of the case to one where no request for a hearing has been filed. Where there is no request for a hearing, the statute decrees that the preliminary findings and order on the merits of the complainant be deemed the final administrative order. 49 U.S.C. app. § 2305(C)(2)(a); 29 C.F.R. § 1978.105(b)(2). Consequently, it was unnecessary for the ALJ to consider the merits of the case. The Secretary also noted that section 18.39(b), permitting the issuance of a default decision is inapplicable in these circumstances because of 49 U.S.C. app. § 2305(c)(2)(a). XI.B.1. Dismissal due to abandonment
Under the applicable regulations governing hearings before Department of Labor ALJs, Complainant's request for a hearing may be dismissed for abandonment if:
29 C.F.R. § 18.39(b). The Secretary affirmed the ALJ's R.O. dismissing the complaint as abandoned. XI B 1 Abandonment under 29 C.F.R. § 18.39(b) Where complainant failed to appear at a hearing before the administrative law judge, failed to respond to an Order to Show Cause Why Request for Hearing Should Not be Dismissed, and failed to respond to the administrative law judge's order of dismissal based on abandonment despite an express provision permitting a response, the record supported a finding of abandonment under 29 C.F.R. § 18.39(b). However, the administrative law judge improperly recommended that the complaint be dismissed. Rather, pursuant to section 18.39(b), dismissal of the request for a hearing operates to change the posture of the case to one where no request for a hearing has been filed. Where there is no request for a hearing, the statute decrees that the preliminary findings and order on the merits of the complaint be deemed the final administrative order. 49 U.S.C. app. § 2305(c)(2)(a); see also 29 C.F.R. § 1978.105(b)(2). Steigerwald v. Robbins Trans., Inc., 91-STA-35 (Nov. 21, 1991). XI B 1 Failure to prosecute In Yocum v. National Steel & Tube Distributors, Inc., 89-STA-19 (ALJ May 7, 1993), the ALJ dismissed the case based on failure to prosecute and abandonment of the request for a hearing by the Complainant. In Yocum, two prior hearing had been scheduled by different ALJs. The first hearing was rescheduled because no representative for the Respondent attended. The Complainant failed to appear at the second hearing, and his response to the ALJ's order to show cause was that the Respondent was in bankruptcy. The case was continued on March 1, 1991. On April 19, 1993, a third ALJ issued an order to show cause why the claim should not be dismissed. The ALJ's attempts to contact the Complainant by certified mail were unsuccessful, and based on the Complainant's failure to attend the second scheduled hearing, the failure to maintain contact with the OALJ, and the failure to respond to the final order to show cause, the ALJ dismissed pursuant to 29 C.F.R. § 18.39(b) and Rule 41(b) of the Federal Rules of Civil Procedure (as made applicable by 29 C.F.R. § 18.1). In Yocum v. National Steel & Tube Distributors, Inc., 89-STA-19 (Sec'y July 1, 1993) (notice of case closing), the Office of Administrative Appeals stated that the ALJ's decision was final, citing 29 C.F.R. § 18.39(b). XI. B. 1. Abandonment In Fugitt v. Slidell Moving & Storage, 94-STA- 12 (Sec'y June 8, 1994), the Secretary affirmed the ALJ's recommendation of dismissal pursuant to 29 C.F.R. § 18.39(b)because Complainant abandoned the complaint. Neither Complainant nor his representative appeared for the first hearing scheduled in this case and Respondent moved for dismissal. The ALJ issued an Order to Show Cause granting Complainant ten days to explain why he failed to appear. Complainant submitted a letter explaining that he had been out of town for a week and upon receiving the notice of hearing, had only 12 hours to prepare. Complainant apologized for failing to appear and asked for more time. The ALJ reset the hearing for a later date. A return receipt indicated that Complainant received the notice. Complainant again failed to appear or to notify the ALJ that he would not appear. Respondent's counsel explained that he had telephoned Complainant about a different matter, mentioned the second hearing date in this case, and Complainant was aware of it. Respondent again moved for dismissal. Complainant did not attempt to notify the ALJ of the reason for his failure to appear. Under the regulations governing hearings before Department of Labor ALJs, a party's request for hearing may be dismissed for abandonment if:
29 C.F.R. § 18.39(b). Title 29, Code of Federal Regulations, Part 24 is not applicable to the Surface Transportation Assistance Act. Where complainant refused to accept certified mail, respond to the ALJ's orders, or receive telephone calls, the complaint is properly dismissed under 29 C.F.R. § 18.6(d)(2), not under 29 C.F.R. § 24.5(e)(4). Cohen v. Roberts Express, 91-STA-29 (Sec'y Feb. 11, 1992).
[STAA Whistleblower Digest XI B 2] In Somerson v. Eagle Express Lines, Inc., ARB No. 06-023, ALJ No. 2004-STA-12 (ARB Nov. 30, 2006), PDF | HTM the ARB affirmed the ALJ's entry of a default judgment against the Complainant where the Complainant had refused to participate in a pre-hearing conference call, failed to follow the ALJ's orders, failed to demonstrate good cause in response to the ALJ's show cause order, and failed to file a brief or argument before the ARB. The Board stated that it "will affirm an ALJ's recommended decision and order on the grounds of abandonment, where the facts dictate that a party has failed to prosecute his or her case." USDOL/OALJ Reporter at 3, quoting Larue v. Kllm Transports, Inc. ARB No. 02-024, ALJ No. 01-STA-54, slip op. at 2 (ARB July 22, 2003).
[STAA Whistleblower Digest XI B 2]
An ALJ may recommend dismissal of a complaint based upon a party's failure to comply with his order. Dismissal of a complaint for failure to comply with the ALJ's orders is a very severe penalty to be assessed in only the most extreme cases. Factors to be considered include:
These factors are not a rigid test but are simply criteria for the court to consider. Howick v. Campbell-Ewald Co., ARB Nos. 03-156 and 04-065, ALJ Nos. 2003-STA-6 and 2004-STA-7 (ARB Nov. 30, 2004) (ALJ properly weighed factors; record supported ALJ's findings and recommendation to dismiss).
[STAA Whistleblower Digest XI B 2]
Where Complainant was afforded ample opportunity to comply with the ALJ's orders to compel discovery and Complainant was given clear and unambiguous notice that a decision in the proceeding could be rendered against him for failure to respond to the ALJ's orders, the ALJ's recommendation to dismiss under 29 C.F.R. § 18.6(d)(2) was affirmed by the ARB. Dickson v. Butler Motor Transit/Coach USA, ARB No. 02 098, ALJ No. 2001 STA 39 (ARB July 25, 2003).
[STAA Digest XI B 2]
In Griffin v. Consolidated Freightways Corp. of Delaware, 97-STA-25 (ARB Feb. 10, 1998), the ALJ recommended dismissal of the complaint Complainant failed to respond to any of the ALJ's orders and had been uncooperative in other aspects of the pretrial stage. The ARB observed that the ALJ's findings of fact were supported by substantial evidence on the record as a whole and therefore were conclusive pursuant to 29 C.F.R. §1978.109(c)(3) (1997) (the ALJ had detailed the procedural history leading to his recommendation of dismissal). Accordingly, the ARB accepted the ALJ's recommendation and dismissed the complaint. 29 C.F.R. §§1978.106(a) and 18.6(d)(2)(v) (1997).
[STAA DIGEST XI B 2]
In Spady v. Roadway Express, 96-STA-28 (ARB June 24, 1997), the ALJ recommended dismissal with prejudice where Complainant did not respond to the ALJ's order to show cause why the complaint should not be dismissed for failure to comply with the prehearing order and failure to appear at the hearing. The Board issued its own order to show cause, and when Complainant did not respond, adopted the ALJ's order of dismissal.
[STAA Digest XI B 2]
In Somhorst v. Silver Eagle Transport, 97-STA-4 (ARB May 13, 1997), the ALJ had issued, via certified mail, an order to show cause why the matter should not be dismissed because of Complainant's non-compliance with prehearing orders. When the certified mail was returned to the ALJ with a notation by the U.S. Postal Service that the document was unclaimed despite two notifications of attempted delivery, the ALJ recommended dismissal. The ARB issued a second order to show cause. When neither Complainant nor Respondent responded, the ARB adopted the ALJ's order of dismissal. XI B 2 Complainant's refusal to comply with ALJ's directives In Graham v. Gunther's Transport, 93-STA-14 (ALJ Aug. 24, 1993), the ALJ recommended dismissal pursuant to 29 C.F.R. § 18.36(b) where Complainant repeatedly refused to follow the ALJ's orders, comply with his directions, and adhere to reasonable standards of orderly conduct. XI B 2 Where Complainant Requests that the Charges Made Against the Employer be Dismissed, Such Request is Treated under 29 C.F.R. § 1978.111(c) as a Withdrawal of Objections to the Preliminary Findings of the Secretary Complainant requested in a letter to the ALJ that his charges against the employer be dismissed. The ALJ directed complainant to further clarify his request for dismissal. When the complainant failed to respond to the ALJ's directive, the case was dismissed under 29 C.F.R. § 18.5(c). The Secretary observed that a general request for dismissal is properly handled under 29 C.F.R. § 1978.111(c), providing that a party may withdraw objections to the Secretary's preliminary findings. The Secretary vacated the ALJ's order of dismissal and entered an order reinstating the preliminary findings of no merit, in effect, dismissing the claim. Snow v. TNT Red Star Express, Inc., 91-STA-44 (Sec'y Mar. 13, 1992). XI B 2 Dismissal for failure to comply with discovery and prehearing orders In White v. "Q" Trucking Co., 93-STA-28 (Sec'y Dec. 2, 1994), the Secretary adopted the ALJ's recommendation that the complaint be dismissed based on the Complainant's refusal to comply with certain discovery and prehearing orders. 29 C.F.R. § 18.6(d)(2)(v). The Secretary agreed with the ALJ that costs and expenses should not be assessed against the Complainant. [Editor's note: The ALJ decision underlying the Secretary's final order was detailed. The ALJ carefully established Complainant had demonstrated a pattern of contumacious conduct. The ALJ's conclusion that costs and expenses should not be awarded to the Respondent for preparation of the Motion for Sanctions was based on the Secretary's ruling in Billings v. Tennessee Valley Authority, 89-ERA-16, 25, 90-ERA-2, 8, 18 (Sec'y July 28,m 1992), that the Department had elected not to assert any inherent authority to impose costs in a whistleblower proceeding. See White v. "Q" Trucking Co., 93-STA-28 (ALJ Aug. 12, 1994).] XI B 2 Dismissal for failure to respond to ALJ's orders In Rowland v. Easy Rest Bedding, Inc., 93-STA-19 (Sec'y Apr. 10, 1995), adopting (ALJ July 22, 1994), the Secretary adopted the ALJ's recommendation that the matter be dismissed for the Complainant's failure to comply with procedural orders. 29 C.F.R. § 18.6(d)(2)(v)(1994). In Rowland, the Secretary had earlier remanded the case to the ALJ for the ALJ to determine whether the Complainant intended to proceed against a successor employer. The ALJ issued an order directing the Complainant to state his position on the successorship issue, and receiving no response, the ALJ issued an order to show cause. The Complainant did not respond to the second order either. Both orders were received by the Complainant as evidenced by signed return receipts.
[STAA Whistleblower Digest XI B 3]
In Somerson v. Mail Contractors of America, ARB No. 02 057, ALJ Nos. 2002 STA 18 and 19 (ARB Nov. 25, 2003), the ARB affirmed the ALJ's dismissal of the complaint based on Complainant's misconduct before, during and after the hearing. Although the ALJ concluded that he had authority to dismiss the complaint for misconduct pursuant to the OALJ Rules of Practice and Procedure at 29 C.F.R. §§ 18.6(d) and 18.36, the ARB concluded that neither of those rules authorize such a dismissal. The ARB found that section 18.36 would authorize exclusion of a party for misconduct, but does not authorize dismissal of the complaint. The Board found that although section 18.36(d)(2)(v) permits an ALJ to render a decision against a party who fails to comply with an order, that section only refers to orders issued concerning discovery, and not to orders or warnings the ALJ gives to a party disobeying pre trial orders or misbehaving at a hearing. Nonetheless, the ARB held that DOL ALJs "have inherent power to dismiss whistleblower complaints when they find that the complainant's conduct is egregious." The ARB cautioned, however:
Slip op. at 9 (footnotes omitted). In the case at bar, the ARB found that Complainant's insolent responses to the ALJ's pre hearing orders, his flagrant disdain, mocking behavior and accusations at the hearing, and other conduct, constituted "blatantly contumacious, egregious misconduct that threatened the integrity of the judicial process." The ALJ had warned Complainant four times that further misconduct could result in dismissal of his complaints, illustrating that the ALJ's patient attempts to adjudicate the case had become futile. Therefore, the ARB affirmed the ALJ's dismissal of the complaints. In a footnote, the ARB observed that the audiotape of the hearing was more fully illustrative of Complainant's behavior than what the transcript alone revealed. To the same effect in regard to the ruling on the inherent authority of an ALJ to fashion sanctions for misconduct, see Somerson v. Mail Contractors of America, ARB No. 03 055, ALJ No. 2002 STA 44 (ARB Nov. 25, 2003). [Editor's note: The ARB's ruling that section 18.6(d)(2)(v) only applies to discovery orders is significant for all program areas adjudicated by OALJ, as ALJs have commonly relied on this provision as authority for potential sanctions for non compliance with all kinds of lawful orders. The ARB decision preserves the ALJ's authority to impose the severe sanction of dismissal, but ALJs will now need to cite their inherent authority to control hearings rather than cite to this Rule of Practice, except in regard to refusals to comply with discovery orders. But see Dickson v. Lakefront Lines, Inc., ARB No. 02 029, ALJ No. 2001 STA 62 (ARB July 24, 2003) (indicating that section 18.6(d)(2) provides support for dismissal of a case based on abandonment; Complainant had refused service of ALJ order granting a continuance and three motions filed by Respondent; ALJ had also based dismissal on Complainant's lack of cooperation on discovery but ARB ruling appears to have been based on refusal of service)]
[STAA Whistleblower Digest XI B 3]
In Somerson v. Mail Contractors of America, ARB No. 03 055, ALJ No. 2002 STA 44 (ARB Nov. 25, 2003), Complainant had sent harassing and implicitly threatening e mails and opened anonymous web sites directed at Employer and its counsel, despite being subject to a Consent Order entered into before a federal district court requiring him to conduct himself within the bounds of appropriate respect and decorum in litigating cases before OALJ (based on his conduct in a prior whistleblower proceeding). The Board found that Complainant's response to an order to show cause evidenced "no recognition of the severity of his misconduct or intention to renounce his campaign of harassment and intimidation" and therefore supported the ALJ's decision to dismiss the case, especially in view of the consent order.
[STAA Whistleblower Digest XI B 3]
In Howick v. Campbell Ewald Co., 2003 STA 6 (ALJ Sept. 18, 2003), the ALJ dismissed the complaint based on a pattern of delay and malfeasance by Complainant and his counsel. The ALJ recounted Complainant's lengthy delay in making himself available for deposition and in answering interrogatories and requests for production of documents. In addition, the ALJ recounted Complainant's attorney's repeated violations of orders, including filing frivolous motions, filing letters instead of motions, making a late request for subpoenas, and failure to be prepared at the start of the hearing with marked, indexed and timely exchanged documents. The ALJ also noted that he had repeatedly warned Complainant that he was dangerously close to having his complaint dismissed. The ALJ emphasized that no one action or inaction by Complainant or his counsel precipitated the dismissal, but rather the totality of the circumstances. The ALJ found that Complainant's stalling in the taking of his deposition essentially precluded Respondent from pursuing any discoverable evidence that arose out of the deposition "most notably the recordings of conversations and voicemail messages that Complainant made but did not produce." USDOL/OALJ Reporter @ 26 [HTML].
[STAA Whistleblower Digest XI B 3] In Bacon v. Con Way Western Express, ARB No. 01 058, ALJ No. 2001 STA 7 (ARB Apr. 30, 2003), the ALJ had recommended dismissal based on Complainant's atrocious behavior at the hearing and failure to prosecute the complaint. The Complainant had so disrupted the hearing that the ALJ ultimately had adjourned the hearing and summoned United States Marshalls to escort Complainant from the courtroom. On review, the ARB applied a five part test stated in the Tenth Circuit decision in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.1992), for determining whether a dismissal for "want of prosecution" was warranted. The factors are:
The ARB noted that these factors are only guidelines. The ARB affirmed the ALJ's recommendation of dismissal where, inter alia, the Complainant made it clear that his interest was as much (if not more) in subjecting witnesses and Respondent's to his invective and abuse than in litigating his complaint. The ARB acknowledged that failure to prosecute typically involves a delay of months or even years, but that while such a delay was not a factor in the present case Complainant's "totally unacceptable conduct and the absence of any expression of apology or avowal to conform his conduct to an appropriate standard in the future is an additional factor that tips the balance in favor of dismissal." The ARB also took into account the ALJ's patience and forbearance, and resort to dismissal only after unsuccessfully attempting to convince Complainant to conform his conduct to acceptable standards and proceed with his case, and only after issuing an order to show cause providing Complainant an opportunity to rectify the situation, which instead the Complainant used as an opportunity to further vilify and excoriate Respondent.
[STAA Whistleblower Digest XI B 3] In Somerson v. Mail Contractors of America, Inc., 2002 STA 44 (ALJ Dec. 16, 2002), during a suspension of the hearing, Complainant sent anonymous e mails to two witnesses and counsel for Respondent, and activated websites dedicated to haranguing counsel for Respondent, which the ALJ found all had the unmistakable intent to harass and intimidate. In response to an Order to Show, Complainant defiantly argued that he had a First Amendment right to engage in such conduct. The ALJ found this argument unconvincing, and recommended dismissal of the case pursuant to 29 CFR §18.6(d)(2) because "threatening and harassing witnesses and an officer of the court overtly attempts to impede the administration of justice, and because Complainant previously ha[d] been sanctioned by a U.S. District Court for misbehavior related to a prior hearing before the Office of Administrative Law Judges of the U.S. Department of Labor . . ., and accordingly was on clear notice that such behavior would not be tolerated...." The ALJ found that less severe sanctions would not have been effective given Complainant's past history of misbehavior before DOL ALJs and the response to the Order to Show Cause's absence of respect for the integrity and decorum of proceedings before OALJ or the presiding ALJ. The ALJ certified the Complainant's conduct to a U.S. District Court which had retained jurisdiction over a Consent Order issued in response to Complainant's abusive misbehavior during a prior STAA proceeding.
[STAA Whistleblower Digest XI B 3]
In Somerson v. Mail Contractors of America, 2002 STA 18 and 19, the ALJ had been required to terminate the hearing and have Complainant escorted from the courtroom because of his disruptive conduct. Complainant had earlier violated court orders and been abusive to court personnel on the telephone. The ALJ subsequently certified the facts to the United States District Court in the jurisdiction where the hearing took place for appropriate remedies pursuant to 29 C.F.R. § 18.29(b). Somerson v. Mail Contractors of America, 2002 STA 18 and 19 (ALJ Feb. 12, 2002). In In re Daniel S. Somerson, No. 3:02 cv 121 J 20 TEM (D.C. M.D. Fla. Apr. 8, 2002) (unpublished), the District Court entered a Consent Order in which the court found that Complainant had engaged in unacceptable behavior, and ordered that Complainant:
Complainant was also required to send written apologies to several OALJ judges and staff. The District Court retained jurisdiction "to enforce any violation by [Complainant] of this Consent Order and to impose any such sanction as may be provided for by law."
[STAA Whistleblower Digest XI B 4]
In Ass't Sec'y & Marziano v. Kids Bus Service, Inc., ARB No. 06-068, ALJ No. 2005-STA-64 (ARB Dec. 29, 2006),
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the Respondent objected to OSHA's findings and requested a hearing before an ALJ. During the course of the proceedings before the ALJ, counsel for the Respondent informed the ALJ that the Respondent was out of business, had no assets, would not appear at the rescheduled hearing, and "fully underst[ood] the potential impact of a default." Upon motion by the Solicitor of Labor's regional office, the ALJ issued an order to show cause why the Respondent's objections to OSHA's findings and order should not be "stricken" and the findings and order not be adopted by the ALJ as the final order of the Secretary. See 29 C.F.R. § 18.39(b). The Respondent did not respond, and the ALJ granted the motion. See 18.5(b). Upon automatic review, the ARB affirmed.
[STAA Digest XI C 1]
In Burlile v. Cobra Trucking, JMK Line, ARB No. 08-023, ALJ No. 2006-STA-6 (ARB Mar. 18, 2008), following the Respondent's discharge in bankruptcy, the Complainant filed a "Notice on Nonsuit" with the ALJ, who construed it as a request to withdraw the complaint. On review, the ARB held that the non-suit based on the Respondent's bankruptcy was a voluntary dismissal, but that under § 1978.111(c), it was required to construe the request as a withdrawal of objections to the Secretary's preliminary findings and to affirm those findings.
XI. C. 1. Dismissal for involuntary
bankruptcy
In Toland v. PST Vans, Inc., 93-STA-29 (Sec'y Sept.
7, 1994), the complaint was dismissed because any liability of
the Respondent was discharged by order of the United States
Bankruptcy Court.
Prior to hearing, the Respondent advised that it was under the
protection of a U.S. Bankruptcy Court. The ALJ entered an order
staying the matter pursuant to the automatic stay provision of
the Bankruptcy Act, 11 U.S.C. § 362(a). When the ALJ
received an order from the Bankruptcy Court confirming
Respondent's plan of reorganization, he ordered the parties to
show cause why the STAA complaint should not be dismissed.
Complainant, acting pro se, responded that the ALJ had no legal
authority to dismiss the case, and that he had not been
"listed at all in the Bankruptcy Court."
The Secretary, adopting the ALJ's recommendations, found that
Complainant was aware of the bankruptcy proceeding through a
telephone conference, and the service of various motions and
orders, including the ALJ's order staying the proceeding, which
referred to the bankruptcy proceeding. In addition, pursuant to
11 U.S.C. § 1141(d), the Bankruptcy Court's order confirming
the plan of reorganization finally discharged any liability of
the Respondent in the STAA proceeding.
XI C 1 Dismissal based on respondent's
bankruptcy
The STAA claim was dismissed without prejudice on the grounds
that a proof of claim was filed on behalf of the Complainant in
the Respondent's bankruptcy proceeding. Feathers v. Steve
D. Thompson Trucking, Inc., 89-STA-14 (Sec'y May 17,
1990).
XI C 1 Dismissal based on respondent's involuntary
bankruptcy
STAA whistleblower complaints were dismissed in Thomas v.
Western American Concrete, 90-STA-16 (July 13, 1992),
where the final report of the Chapter Seven Trustee for the
bankruptcy estate of the respondent certified that respondent's
estate has "no assets". The Secretary had earlier
issued an order pursuant to section 363(a)(1) of the Bankruptcy
Act, 11 U.S.C. § 362(a)(1), staying any further action on
the complaint in view of respondent's involuntary bankruptcy
proceeding, until the final disposition of the bankruptcy case.
The Secretary had remanded the case to the ALJ to ascertain the
status of the bankruptcy case, obtain the final order, and
conclude review of the case.
XI. C. 1. Dismissal for involuntary bankruptcy
In Toland v. PST Vans, Inc., 93-STA-29 (Sec'y Sept.
7, 1994), the complaint was dismissed because any liability of
the Respondent was discharged by order of the United States
Bankruptcy Court.
Prior to hearing, the Respondent advised that it was under the
protection of a U.S. Bankruptcy Court. The ALJ entered an order
staying the matter pursuant to the automatic stay provision of
the Bankruptcy Act, 11 U.S.C. § 362(a). When the ALJ
received an order from the Bankruptcy Court confirming
Respondent's plan of reorganization, he ordered the parties to
show cause why the STAA complaint should not be dismissed.
Complainant, acting pro se, responded that the ALJ had no legal
authority to dismiss the case, and that he had not been
"listed at all in the Bankruptcy Court."
The Secretary, adopting the ALJ's recommendations, found that
Complainant was aware of the bankruptcy proceeding through a
telephone conference, and the service of various motions and
orders, including the ALJ's order staying the proceeding, which
referred to the bankruptcy proceeding. In addition, pursuant to
11 U.S.C. § 1141(d), the Bankruptcy Court's order confirming
the plan of reorganization finally discharged any liability of
the Respondent in the STAA proceeding.
XI C 2 Situations not covered by the
Act or regulations
Both prosecuting parties, the Assistant Secretary for
Occupational Safety and Health and the Complainant, withdrew from
the case before the commencment of a hearing as scheduled. The
ALJ dismissed the case. The Secretary held that the ALJ cited no
authority for his dismissal. The Secretary noted that neither
the Act or its regulations nor the regulations at 29 C.F.R. Part
18 contemplate the situation presented by this case. Therefore,
the Secretary held that the Federal Rules of Civil Procedure are
applicable.
The Secretary found that Rule 41(a)(1)(ii) is the applicable
rule, which provides for voluntary dismissal of an action by the
filing of a stipulation of dismissal signed by all parties who
have appeared in the action. Unless otherwise stated, the
dismissal is without prejudice. The Secretary held that the
Respondent's having acquiesced in this dismissal had the effect
of filing a joint stipulation, and therefore, dismissed the case
without prejudice. Monroe v. QJ Transfer and Storage, 89-
STA-4 (Sec'y July 11, 1989).
XI C 2 Situations not covered by Act or
regulations
In Sharp v. James Helwig & Son, Inc., 90-STA-30
(Sec'y Jan. 18, 1991) (order to show cause), after the Respondent
filed objections to the Assistant Secretary's preliminary
findings, and prior to hearing, the Complainant withdrew his
complaint by filing a withdrawal form with OSHA. Thereafter, the
Complainant appears to have moved and could not be contacted.
The Regional Solicitor and the Respondent, in an apparent effort
to dispose of the case, entered into an "adjudicatory
settlement" pursuant to 29 C.F.R. § 1978.111(d)(2), and
submitted the "settlement" to the ALJ for approval.
The ALJ issued an interim order, with the Complainant not
responding due to failure of service. Thus, the ALJ issued a
final order approving the "adjudicatory settlement."
Since there was no evidence of the Complainant's consent, the
(Acting) Secretary concluded that an "adjudicatory"
settlement could not serve as the basis for disposition of the
case, and the ALJ erred in approving the "settlement."
The Secretary concluded that there was no provision for the
circumstances in either 29 C.F.R. Part 1978, 29 C.F.R. Part 18,
or the Federal Rules of Civil Procedure. It was concluded that
Rule 41 of the Federal Rules, governing voluntary dismissals, was
not applicable because the Complainant withdrew his complaint
after the Respondent objected to the preliminary findings, see
Hester v. Blue Bell Service, 86-STA-11 (Sec'y July 9, 1986),
slip op. at 3 n.2 (holding that the denial of the allegations
made in a complaint by the respondent are, in effect, the filing
of an answer for purposes of deciding whether to apply Rule
41(a)), he did not enter into any stipulation with the
Respondent, and he did not request dismissal from the ALJ.
In considering the circumstances, the Secretary concluded that
the interests of justice require that the case be dismissed.
Hence, citing 29 C.F.R. § 1978.115 (regulation permitting
waiver of rules in special circumstances upon notice), notified
the parties that the complaint would be dismissed without
prejudice in the event that good cause was not shown why it
should not be so dismissed.
[Editor's note: The case was dismissed without prejudice in
Sharp v. James Helwig & Son, Inc., 90-STA-30
(Sec'y Jan. 18, 1991), no party having responded to the order to
show cause]
XI C 3
[STAA Whistleblower Digest XI C 3]
Where neither party filed an appellate brief, the ARB in Lepley v. Farmers Union Elevator at New
Salem, ARB No.00-046, ALJ No. 1999-STA-48 (ARB Apr. 25, 2000), deemed
the ALJ's decision the final administrative order, and closed the case.
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