On or about March 27, 2003, Respondent, Exelon Nuclear Generating Company, LLC, filed a Motion to Dismiss citing lack of jurisdiction. Specifically, Complainant failed to serve Exelon with a copy of his hearing request as provided by the regulations at 29 C.F.R. § 24.4(d)(3).
On April 7, 2003, I issued an Order to Show Cause directed to the Complainant why Respondent's Motion for Dismissal should not be granted.
While Mr. Hibler responded to my Order to Show Cause on April 21, 2003, Complainant failed to state good cause for denying the Respondent's motion, other than "I was not aware I had to notify Exelon of my appeal."
In reviewing the regulations, 29 C.F.R. § 24.4(d)(2) states that if a request for a hearing is not timely filed, the notice of determination (in this case, issued by the Occupational Safety and Health Administration of the United States Department of Labor; hereinafter, "OSHA") shall become the final order of the Secretary. This section could have easily stated words to the effect that if a party failed to serve another party his request for a hearing, the notice of determination would become the final order of the Secretary; however, it did not. In fact, nowhere in the regulations does it provide for dismissal of a party's case for failure to serve the other side.
In the case before me, Complainant is pro se. The determination letter from OSHA is dated February 10, 2003 and concludes that the complaint should be dismissed for lack of merit. It sets out an appeal notification but it does not enumerate the specific regulations governing the appeal process. While it states that the Complainant must, within five business days of receipt of the determination letter, file his request for hearing by facsimile, overnight/next day mail or telegram to the Chief Administrative Law Judge and that unless the Complainant did so, the conclusions reached by OSHA would become the final order of the Secretary of Labor, and "it will be necessary for you (Complainant) to send copies of the request (for hearing) to Exelon Nuclear Generating," it fails to state the consequences of not serving Exelon. The notice also fails to advise Complainant that a copy of the request for a hearing shall be sent by him to Exelon on the same day that the hearing was requested and fails to state the method of service, i.e., by facsimile, telegram, hand delivery or next-day service as provided by 29 C.F.R. § 24.4(d)(3). Thus, the "Appeal Notification" hardly tracks the regulations at 29 C.F.R. § 24.4(d)(2) & (3).
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Under the circumstances, I deny Respondent's Motion for Dismissal, as too harsh a result for this pro se Complainant. I am fully cognizant that my finding here is contrary to the opinions and/or decisions made by two other administrative law judges in Webb v. Numanco, LLC, No. 98-ERA-27 (RD July 17, 1998) and Cruver v. Burns International, No. 01-ERA-31 (RDO December 5, 2001).
