Department of Labor
Office of Administrative Law Judges
304 A U.S. Post Office and Courthouse
Cincinnati, Ohio 45202
(513) 684-3252
Date: JAN 07 1985
Case No. 84-ERA-8
In the matter of
JIMMIE E. ABSON
Complainant
v.
HENRY J. KAISER COMPANY
Respondent
ORDER OF DISMISSAL
On January 31, 1984 a notice was issued scheduling a hearing for
February 21, 1984 regarding the complaint of Jimmie E. Abson, the
complainant, against Henry J. Kaiser Company, the respondent,
pursuant to the Energy Reorganization Act.
On February 9, 1984 Donald J. Mooney, Jr., Esq. withdrew as
counsel for the complainant. On February 10, 1984 the
complainant advised a member of my staff that Barbara Zuras, Esq.
would be his attorney and that she would call my office that day
or on Monday, February 13, 1984. On that date an order was
issued postponing the hearing.
[Page 2]
No further message having been received from the complainant or a
representative of the complainant, on May 7, 1984 an order was
issued directing the complainant to show cause why his request
for hearing should not be dismissed on grounds of abandonment.
In that connection, it was noted that 29 Code of Federal
Regulations §18.39(b) (48 Fed. Reg. 32,547 (1983)) provides in
part that a request for hearing may be dismissed upon its
abandonment by the party who filed it. The apparent inaction of
the complainant in this case raised a question as to whether he
had abandoned his request for hearing.
The complainant responded on June 17, 1984, stating that he did
not intend to abandon his claim and that he had filed for
bankruptcy and was financially unable to pursue his claim, and
requesting that no action be taken on his claim for a period of
six months.
On July 2, 1984 the respondent filed a response and motion to
dismiss stating, among other things, that the complainant had
abandoned his claim and prejudiced the respondent by his delay.
On October 1, 1984 an order was issued in which it was recognized
that the respondent's task of defending the case was made more
difficult by the passage of time. However, upon giving due
consideration to the factors cited by each party, it was
concluded that the complainant did not intend to abandon his claim
and that his financial circumstances constituted good cause for
his previous failure to act. It was considered that the time
limits imposed by law were primarily for the benefit of the
complainant. It was concluded that the balance of equities
militated against dismissal at that time.
However, it was also noted that any request for further
postponement beyond the six months requested by the complainant would
require a more compelling showing of good cause.
Therefore, at that time the respondent's motion for dismissal was
denied, and it was directed that on or before December 17, 1984
(six months after the complainant's response dated June 17, 1984)
the complainant file with me at my office in Cincinnati, Ohio, a
written statement setting forth the name, address and telephone
number of his attorney, if any, and representing. whether or not
he was ready to proceed promptly with a hearing In this case, and
[Page 3]
if he was not ready to proceed with a hearing a showing of good
cause as to why his request for hearing should not be dismissed
for abandonment.
The time for a response by the complainant has expired, and he
has not submitted a response of any kind. It is concluded that
the complainant by his continuing inaction has abandoned his
request for hearing. Accordingly, IT IS ORDERED, pursuant to 29
CFR §18.39(b) that the complainant's request for hearing be, and
it hereby is, dismissed.