DATE: January 22, 1991
CASE NO. 90-STA-12

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
    PROSECUTING PARTY,

    and

JERRY E. WALTERS AND
MITCHELL S. STRODE,
    COMPLAINANTS,¹

    v.

KARMICHAEL TANK SERVICE,
    RESPONDENT.

BEFORE: THE ACTING SECRETARY OF LABOR²

   Before me for review is the Recommended Decision and Order Dismissing Complaint (R.D. and O.) issued, on November 8, 1990, by Administrative Law Judge (ALJ) Charles W. Campbell in this case which arises under the Surface Transportation Assistance Act of 1982, 49 U.S.C. app. § 2305 (1988).³

   The ALJ recommends that Respondent's motion for dismissal be granted pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The ALJ found that resort to the Federal Rules is appropriate because Section 18.1 of 29 C.F.R. Part 18, which prescribes rules of practice and procedures for hearings before ALJs, provides that the Federal Rules control in any situation "not provided for or controlled by these rules, or by any statute executive order or regulation." R.D. at 1-3.⁴ In the ALJ's view, dismissal under Rule 41(b) was justified because Complainants "have been unresponsive to orders of the administrative law judge and uncooperative with the attorney in the office of the Solicitor who formerly represented them. . . ."

   Upon a thorough review of the record in this case, I agree with the ALJ that the complaint of Complainant Walters and the complaint of Complainant Strode should be dismissed. The record substantiates that Complainants have failed to respond to orders issued by the ALJ and to communications from former counsel. In the absence of anything to the contrary, it is reasonable to assume that Complainants no longer desire to prosecute their claims. Under such circumstances, it is unfair to Respondent that the case remain open.

   I do not, however, agree with the ALJ that the Federal Rules must be resorted to in order to dismiss this case. Since the regulations at 29 C.F.R. Part 1978, which implement the STAA, contain no provision covering the situation at issue, the provisions of 29 C.F.R. Part 18 are applicable. 29 C.F.R. § 1976.106. Section 18.6(d)(2) of 29 C.F.R. provides, that, where a party fails to comply with any order of the ALJ,

the administrative law judge, for the purpose of permitting resolution of the relevant issues and disposition of the proceeding without unnecessary delay despite such failure, may take such action in regard thereto as is just, including but not limited to the following:

* * * *

(v) Rule that a pleading, or part of a pleading, or a motion or other submission by the non- complying party, concerning which the order or subpoena was issued, be stricken, or that a decision of the proceeding be rendered against the non-complying party, or both.

¹The Assistant Secretary of Labor for Occupational Safety and Health (OSHA) has withdrawn as prosecuting party and as representative for Complainant Walters and Complainant Strode.

²There is presently a vacancy in the Office of Secretary of Labor. The Deputy Secretary is authorized to "perform the duties of the Secretary until a successor is appointed. . . ." 29 U.S.C. § 552 (1988).

³On December 13, 1990, after receipt of this decision, the Director of the Office of Administrative Appeals, acting on my behalf, issued an Order to Furnish Information and Service of Administrative Law Judge's Decision. The reason for this order was the uncertainty as to the correct service address for Complainant Walters. The ALJ, the parties and the Regional Solicitor were directed to file, within 10 days of receipt of the order, a statement as to Walter's correct address. To ensure that Complainants received the ALJ's R.D. and O., a copy was attached to the Director's order, and service upon Walters was made at both possible addresses. The ALJ responded stating that his R.D. and O. inadvertently had been served upon Walters at an incorrect address. No other response was received, but the record reflects that Walters accepted service of the Director's order.

⁴Page 2 of the R.D. and O. incorrectly refers twice to Part 718, rather than Part 18.