Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Dated: February 22, 2001
Case No. 2001-STA-024
In the matter of
Assistant Secretary of Labor
for Occupational Safety and Health
Prosecuting Party
v.
Robert Raggio Jr. Complaintant
v.
United Parcel Service Respondent
Order of Dismissal
This proceeding arises under Section 405 of the Surface Transportation Assistance Act of 1982 [49 U.S.C. §§ 31105] and the regulations promulgated thereunder [29 C.F.R. Part 1978]. On February 7, an Order to Show Cause Why the Claim Should Not Be Dismissed was issued. Mr. Raggio, the Complaintant, is pro se (without an attorney). He was advised that he has a right to be represented.
On or about December 7, 2000, the Secretary issued findings in this matter, signed by Cindy A. Coe, Regional Administrator, Department of Labor, OSHA. Objections to the findings were filed January 23, 2001.
29 CFR § 1978.105 sets forth that the objections must be filed within thirty days of receipt of the findings or preliminary order or on the compliance date set forth in the order, whichever is later. 49 U.S.C. §§2305(c)(2)(A). Therefore, this is a jurisdictional question, and a full hearing is not necessary. SeeEllis v. Ray A. Schoppert Trucking, 92-STA-28 (ALJ Aug. 7, 1992).
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In a response dated February 8, Mr. Raggio stated that he received the Objection on December 16, 2000. Therefore, the thirty day period expired as of January 15, 2001. If five mailing days were added for mailing, the last date would have been January 20, 2001. Therefore, the Complaintant failed to file his Objections in a timely manner.
The Complainant was given an opportunity to provide any facts that may warrant "good cause" for failing to file in a timely manner. Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Aug. 5, 1992). The Complainant advises that he orally told a Department of Labor investigator in October, 2000 that he wished to appeal. However, 29 CFR § 1978.105 specifically sets forth that any request for hearing or Objection "shall be in writing". The use of the term, "shall" is taken as mandatory, and therefore, the first notice of an objection and/or a request for hearing did not occur until January 23, 2001.
The Complainant also advises that he had a death in his immediate family on October 18, 2000. Although this is unfortunate, there is no showing that this fact may be relevant to good cause for the failure to timely file. Moreover, the Complainant advises that he had reconstructive knee surgery on January 10, 2001. He does not relate how the failure to timely file was impacted, and does not allege that he was, in any way, precluded from filing in a timely manner. Although the Complainant did not have counsel, it reasonable to expect that he is literate and that he understands the nature of this proceeding. Since filing the Objection, the Complainant has produced written Objections and has filed responsive statements to the Orders in this case. Notice is taken that the Complainant was clearly advised that he had thirty days to file his Objections and/or request a hearing. To establish good cause, the party in an administrative proceeding must show that the delay was excusable under the circumstances and that diligence and ordinary prudence had been exercised. Spearman. Also see Phillips v. United States Postal Serv., 695 F.2d 1389, 1391 (Fed.Cir.1982). Whether the time limit for an appeal should be waived is a matter for my discretion. Mendoza v. Merit. Sys. Prot. Bd., 966 F.2d 650 (Fed Cir. 1992).
The Complainant has not set forth grounds that constitute "good cause" for a failure to file the Objections within a thirty days of receipt of the Secretary's findings.
All Motions to enlarge time, issue subpoenas, and continue the hearing scheduled for February 26, 2001 are now moot.
Now, therefore, it is Ordered that the Objections filed January 23, 2001 are hereby dismissed with prejudice and the hearing and all other matters in this case are cancelled.
