On February 27, 1985, Administrative Law Judge Theodore P. von Brand
issued an OrderDismissing Complaint in the above captioned case, which
arises under section 2305 of the Surface Transportation Assistance Act, 49 U.S.C. § 2305.
That order dismissed the proceeding for lack of prosecution pursuant to 20 CFR. 18.39
(b) . Section 18.39(b) provides for dismissal of a request for hearing by virtue of abandonment.
The basis for Judge von Brand's application of section 18.39(b) is that, in a Motion to
Suspend Proceeding or in the alternative to Dismiss Complaint Without Prejudice filed by
Complainant on February 19, 1985, "Complainant advised that he does not intend to
prosecute his case at the hearing scheduled for March 4, 1985."
Judge von Brand erred in dismissing this proceeding pursuant to section
18.39(b). I have carefully reviewed Complainant's motion of February 19, 1985, and do not find
therein sufficient ground to anticipate abandonment by Complainant. I, therefore, conclude that
dismissal of this proceeding pursuant to 20 CFR 18.39(b) is not appropriate, and, accordingly, I
remand this case to the Administrative Law Judge for further proceedings.
