DATE: August 5, 1992
CASE NO. 92-STA-1

IN THE MATTER OF

ROBERT SPEARMAN,
    COMPLAINANT,

    v.

ROADWAY EXPRESS, INC.,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    This case arises under Section 405 of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988), and it. implementing regulations, 29 C.F.R. Part 1978 (1991). Complainant Robert Spearman has moved to recuse Administrative Law Judge (ALJ) Bernard J. Gilday, Jr., from hearing this case. See 5 U.S.C. S 556(b) (1988) (functions of presiding ALJs shall be conducted in an impartial manner). An ALJ may be disqualified upon a showing of personal bias. Roach v. National Transp. Safety Bd., 804 F.2d 1147, 1160 (l0th Cir. 1986), cert. denied, 486 U.S. 1006 (1988). To establish improper prejudgment, it must appear that the ALJ in some measure adjudged the facts and the law of a case in advance of hearing them. City of Charlottesville. VA. v. FERC, 774 F.2d 1205, 1212 (D.C. Cir. 1985), cert. denied, 475 U.S. 1108 (1986). Other factors, such as the complexity of a case and an A W's experience and ability, also may bear on the necessity for reassignment. Aaacon Auto Transport Inc. v. ICC, 792 F.2d 1156, 1162-1163 (D.C. Cir. 1986), cert. denied, 481 U.S. 1048 (1987) (agency authorized to remove ALJ for inadequate

handling of proceedings). Accord Sykes v. Bowen, 854 F.2d 284, 287-288 (8th Cir. 1988). Although the Administrative Procedure Act requires agencies to assign ALJs in rotation to the extent "practicable," 5 U.S.C. § 3105 (1988), a "modicum of discretion" is accorded in assignment decisions. Aaacon Auto Transport. Inc. v. ICC, 792 F.2d at 1163, citing Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128 (1953). See Chocallo v. Bureau of Hearings and Appeals. SSA, 548 F. Supp. 1349, 1369-1370 (E.D. Pa. 1982), aff'd without opinion, 716 F.2d 889 (ad Cir.), cert. denied, 464 U.S. 983 (1983) (approving method of assignment which took into consideration experience, size and complexity of preexisting dockets, number of out-of-city assignment).

    In the instant case, the question of procedure is close. I find particularly disturbing that the AW repeatedly ruled on Respondent's motions without awaiting expiration of the period permitted under the regulations for Complainant's response, thus denying him an opportunity to be heard. In all instances, Complainant's timely responses, filed shortly after the ALJ's premature rulings, are well-taken and deserved careful consideration. Moreover, some of the ALJ's rulings, discussed below, plainly are in error. Upon consideration of the case's development, I believe that fairness may be served by vacating certain of the ALJ's procedural orders and remanding the case to the Chief Administrative Law Judge for assignment to a different ALJ for purposes of conducting a de novo hearing in accordance with the following discussion. In directing reassignment, I note that, as was the case with the ALJ in Aaacon Auto Transport, ALJ Gilday "did not preside at the taking of any evidence, so [a] change [will] not require the new ALJ to make credibility determinations as to witnesses he ha[s] not heard." 792 F.2d at 1163. See Tractor Training Service v. Federal Trade Commission, 227 F.2d 420, 423-424 (9th Cir. 1955), cert. denied, 350 U.S. 1005 (1956) (early substitution of hearing examiner who afforded parties opportunity to start proceedings anew did not result in prejudice).

1. The February 1992 Show Cause Requirement

    In October 1991, Complainant requested an

extension, of unspecified duration, of the period in which to object to findings issued by the Assistant Secretary for Occupational Safety and Health, in order to provide him an opportunity to retain counsel and to prepare and file his objections. Complainant complied with the ALJ's order granting an extension by filing his objections in January 1992. Pursuant to a separate ALJ order, Complainant also filed a preheating statement in late January. In early February, Complainant contacted an attorney regarding representation. "On the road" in performance of his truck driving employment, Complainant was unable to meet with and retain counsel until February 17. By order of continuance issued February 19, the ALJ, inter alia, ordered Complainant "under oath and on the record . . . to show cause why he had neither abused nor misused the administrative process" apparently because it appeared to the ALJ that "a lawyer ha[d] been lurking in the shadows of Complainant's case even prior to the January 30, 1992, filing of this preheating statement]." In an order issued April 2, the ALJ stated: "Counsel would and should prepare Complainant for his announced, on-record demonstration that he has not abused or misused the administrative process and that he should not be the subject of a proceeding in contempt initiated in the United States District Court for the Southern District of Ohio."

    Complainant's extension request was grounded on his intent to retain counsel and his need to prepare and document his objections. He did not represent that he necessarily required counsel to prepare the objections. Until counsel entered her appearance in February 1992, Complainant represented himself in this case, including by filing papers, as was his right under the regulations. 29 C.F.R. § 18.34 (1991). Whether Complainant may have had assistance in preparing his filing. is immaterial. Intending to retain counsel, Complainant reasonably requested compensation for any attorney's fees and expenses incurred "in pursuit of a reasonable resolution of this case" upon filing his preheating statement. See 29 C.F.R. § 1978.106(d) (prehearing statement shall set forth remedy requested). In short, the record is devoid of any suggestion that Complainant in some manner engaged in abuse of process. Accordingly, the ALJ's "show cause" requirement IS VACATED.

2. The March and April 1992 Orders Limiting Complainant's Claims

    ALJ Gilday limited Complainant's claims to the notation apparently recorded by the Occupational Safety and

Health Administration (OSHA) investigator in January 1991, i.e., "C[omplainant] alleged that on 11/16/90 R[espondent] refused to reimburse him for motel expenses he was forced to use because he was too ill and fatigued to drive safely. H This disposition is erroneous. A complainant's initial charge is not a formal pleading setting forth legal causes of action which may serve to limit a suit. See Richter v. Baldwin Associates, Case Nos. 84-ERA-9, et. seq., Sec. Remand Dec., Mar. 12, 1986, slip op. at 9-11. Its purpose merely is to initiate an investigation. A complainant may not have consulted counsel before filing with an agency and may be ignorant of applicable law or of precisely "what constitutes the violation; all the complainant knows is that some adverse action was unfairly taken against him or her." Id. at 10.

    Under the STAA, Complainant is accorded an opportunity for de novo hearing of his complaint. 29 C.F.R. § 1978.106. In this case, Complainant's complaint additionally is defined by a ninepage OSHA questionnaire and background information sheet provided by Complainant on March 13, 1991, including a complaint narrative. The investigation findings issued on September 26, 1991, Complainant's objections to those findings, and Complainant's prehearing statement are useful in confirming the substance and scope of the complaint. Here, Complainant objected in part that the Assistant Secretary's findings failed to address the totality of his complaint and that Respondent had misled the investigator. It is uncontroverted that Respondent received copies of the above documents. See Resp. 2/10/92 Pre-hearing Statement, Exhs. C and E.

    The complaint therefore centers on Respondent's alleged practice of "holding drivers in readiness" for excessive periods prior to dispatch and "forcing drivers into a fatigue situation." OSHA ll(c)/405 Questionnaire at 2.¹ See 29 C.F.R. § 1978.102(e). Complainant cites Respondent's consistent misrouting of loads as contributing to the practice. Complainant assertedly complained to Respondent's management about the practice, and alleges that he and other drivers have been threatened, disciplined, and penalized for refusing to drive when fatigued.

¹In attempting to set out Complainant's allegations, I expressly make no factual findings.