This proceeding arises under the employee
protection provision of the Surface Transportation Assistance Act
of 1982 (STAA), 49 U.S.C. app. § 2305 (1988), and is before
me for review of the [Recommended] Decision and Order -
Dismissing Request for Hearing of the Administrative Law Judge
(ALJ) issued September 9, 1991.
The record shows that although a notice of
hearing was mailed to Complainant at his last known address,
neither Complainant nor any representative of Complainant
appeared at the hearing, held August 8, 1991. On August 13, 1991,
the ALJ issued an Order to Show Cause Why Request for Hearing
Should Not Be Dismissed, and Complainant also failed to respond
to this order. Relying on 29 C.F.R. § 18.39(b) (1991), the
AL] ordered that the case be dismissed on the basis of
Complainant's abandonment of his request for a hearing. On
September 30, 1991, to assure that the parties had received a
copy of the ALJ's recommended decision, a notice, with the ALJ's
decision attached, was served on the parties by certified mail.
The notice also expressly provided the parties time to respond to
the ALJ's recommendation. Although an agent for Complainant
received the notice on October 7, 1991, Complainant has filed no
response.
I agree that the record before me supports a
finding of abandonment under Section 18.39(b). See 29
C.F.R. §§ 1978.100(b), 1978.106(a); Harper v.
Overland Express Inc., Case No. 87-STA-19, Sec. Decision and
Order,
[Page 2]
October 30, 1987, slip op. at 1-2. I disagree, however, with the
ALJ's recommendation that the complaint be dismissed. 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. Harper, slip op. at 2. 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).
Accordingly, I enter the preliminary findings
and order of the Assistant Secretary as the final administrative
order in this case. See 49 U.S.C. app. §
2305(c)(2)(a).