But this regulation does not authorize an ALJ to dismiss a complaint even when, as here, the complainant demonstrates egregious and contumacious behavior. ALJ Huddleston did not exclude Somerson although he did request the marshals to escort Somerson out of the courtroom. The ALJ certainly could have excluded Somerson from further participation in the proceedings by virtue of section 18.36 because Somerson unquestionably refused to comply with Judge Huddleston's directions that he stop disrupting the hearing. Or Somerson could have been excluded because he did not demonstrate "orderly and ethical conduct." Thus, section 18.36 plainly authorizes an ALJ to exclude a party but not to dismiss the complaint.34
1 Mail Contractors informed the Administrative Review Board by voice mail that it would not file a brief.
2 49 U.S.C.A. § 31105 (West 1997). Section 31105 protects covered employees who report violations of commercial motor vehicle safety rules or who refuse to operate vehicles when to do so would violate these rules. Somerson's specific allegations were that Mail Contractors: (1) discriminatorily forced him to drive an unsafe vehicle and sign a Notice of Injury form in retaliation for reporting potential STAA violations; and (2) discriminatorily threatened him with discipline and required him to be medically evaluated. ALJ Exhibit (ALJ Ex.) 1, 2.
3 Somerson was not represented by council at any stage of these proceedings.
29See Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).
30 The ALJ's findings about Somerson's conduct are uncontroverted. After Judge Huddleston certified facts concerning Somerson's disobedience and misbehavior to the District Court and the Court ordered him to show cause, Somerson acknowledged that he "engaged in unacceptable conduct" and "acted in non-compliance with certain orders and directives" in these proceedings. See In Re: Daniel S. Somerson, Case No. 3:02-cv-121-J-20-TEM, United States District Court, Middle District of Florida, Jacksonville Division (Consent Order, April 8, 2002).
32 The regulations governing adjudicatory proceedings before Department of Labor ALJs are found at 29 C.F.R. Part 18 that is entitled "Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges."
38See Reid v. Niagara Mohawk Power Corp., ARB No. 00-082, ALJ No. 2000-ERA-23, slip op. at 7 (ARB August 30, 2002) citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-631 (1962) (citations omitted).
39See Butz v. Economou, 438 U.S. 478, 514 (1978) (administrative law judge is "functionally comparable" to a [federal] judge).
40See Bacon v. Con-Way Western Express, ARB No. 01-058, ALJ No. 01-STA-7, slip op. at 4 (ARB April 30, 2003); Reid v. Niagara Mohawk Power Corp., slip op. at 7.
41Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (citations omitted) (holding that District Court has inherent power to assess attorney's fees and related expenses for litigant's bad-faith conduct).
42Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1119, 1121 (1st Cir. 1989) (citations omitted)(affirming District Court's dismissal because plaintiff's gross misbehavior constituted fraud, and court, "jealous of its integrity and concerned about deterrence, was entitled to send a message, loud and clear").
43See Televideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 916 (9th Cir. 1987); United States v. Moss-American, Inc., 78 F.R.D. 214, 216 (E.D. Wis. 1978).
46Id. Cf. Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) (dismissal under F.R.C.P. 41(b) for failure to prosecute is a sanction applicable only in extreme circumstances); Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984) (dismissal under F.R.C.P. 37(b)(2) must, at a minimum, be based on the sanctioned party's "willfulness, bad faith, or fault in failing to comply with a discovery order").
48 ALJ Ex. 33 is the court reporter's audiotape of the hearing. We find this recording is more fully illustrative of Somerson's behavior than what the transcript reveals.
50 The ALJ granted Mail Contractors leave to file a post-hearing motion for attorney's fees. However, attorney's fees and costs may not be assessed against a STAA complainant. See Abrams v. Roadway Express, Inc., 84-STA-2, slip op. at 1-2 (Sec'y May 23, 1985).