In this case, the ALJ concluded that he was unable to consider Claypoole's March 13th request for a postponement of the March 14th proceedings before him because he received her response after he had issued his Order of Dismissal.
Given the severity of the sanction imposed and the ALJ's discretion to direct the proceedings before him, we believe that it is preferable for the ALJ, in the first instance, to determine, after having the opportunity to consider Claypoole's explanation and request for a postponement, whether she has forfeited the right to continue with the prosecution of her complaint. Accordingly, we REMAND this case to the ALJ so that he can consider the effect, if any, of Claypoole's March 13th letter. We note that in so doing, we do not intend to in any way suggest the outcome of the ALJ's ultimate decision – we remand this case only in furtherance and acknowledgement of his broad discretion to manage the hearing process.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
OLIVER M. TRANSUE
Administrative Appeals Judge
[ENDNOTES]
1 49 U.S.C.A. § 31105 (West 2008). The STAA has been amended since Claypoole filed her complaint. See Implementing Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266 (Aug. 3, 2007). It is not necessary to decide whether the amendments are applicable to this complaint, because they are not relevant to the issues presented by the case and thus, they would not affect our decision.
2 29 C.F.R. Part 1978 (2007).
3 Secretary's Findings at 2 (Aug. 31, 2007).
4 Id. at 1.
5 See 29 C.F.R. § 1978.105.
6 Recommended Order of Dismissal (R. O. D.) at 1.
7 Id.
8 Id.
9 Id. at 2.
10 Id.
11 Id.
12 Id.
13 Id. In support of this conclusion the ALJ cited regulations and case precedent providing that a hearing request may be dismissed on the grounds that the complainant has abandoned it and that the ALJ has the discretion to dismiss a case when the complainant has ignored an administrative law judge's discovery, or other types of orders. R. O. D. at 2.
14 29 C.F.R. § 1978.109(c)(2); Monroe v. Cumberland Transp. Corp., ARB No. 01-101, ALJ No. 2000-STA-050 (ARB Sept. 26, 2001); Cook v. Shaffer Trucking Inc., ARB No. 01-051, ALJ No. 2000-STA-017 (ARB May 30, 2001).
15 See 29 C.F.R. § 1978.109(c)(2).
16 Order (Mar. 19, 2008).
17 29 C.F.R. § 1978.109(c)(3); Lyninger v. Casazza Trucking Co., ARB No. 02-113, ALJ No. 2001-STA-038, slip op. at 2 (ARB Feb. 19, 2004).
18 5 U.S.C.A. § 557(b) (West 2004). The Secretary of Labor has delegated to the Board her authority to issue final agency decisions under the STAA. Secretary's Order No. 1-2002, (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1978.109(a).
19 Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991); Monde v. Roadway Express, Inc., ARB No. 02-071, ALJ Nos. 2001-STA-022, -029, slip op. at 2 (ARB Oct. 31, 2003).
20 Hasan v. Commonwealth Edison Co., ARB No. 99-097, ALJ No. 1999-ERA-017, slip op. at 2 (Sept. 16, 1999).
21 See Yagley v. Hawthorne Center, ARB No. 08-042, ALJ No. 2005-TSC-003, slip op. at 2-3 (May 28, 2008).
22 844 F.2d 1254, 1256 (1988).