ARB CASE NO. 00-057
ALJ CASE NO. 00-STA-17
DATE: August 31, 2000
In the Matter of:
GALE COOK,
COMPLAINANT,
v.
SHAFFER TRUCKING, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Gale Cook, Pro se,
Tukwila, Washington
For the Respondent:
Richard A. Peterson, Esq., Lincoln, Nebraska
ORDER DENYING INTERLOCUTORY APPEAL
Respondent Shaffer Trucking, Inc. has filed an interlocutory appeal of an
Administrative Law Judge's order regarding venue of the administrative hearing in this case arising
under the Surface Transportation Assistance Act of 1982, as amended, 49 U.S.C.A. §31105
(1997).
Background
Administrative Law Judge (ALJ) Burch originally scheduled the
administrative hearing in this case for April 4, 2000, in Seattle, Washington, where complainant Gale
Cook resides. Shaffer Trucking filed a "Motion for Change of Venue" arguing that it
is a Pennsylvania corporation, headquartered in New Kingstown, Pennsylvania, and has no facilities
in Washington state. Shaffer Trucking further averred that "[w]ith the exception of
Complainant, the individuals interviewed by the [Occupational Safety and Health Administration]
[Page 2]
investigator regarding the termination of Complainant's employment all reside in the vicinity of
Harrisburg, Pennsylvania." Respondent's Motion for Change of Venue at 1. The ALJ granted
the Motion and issued an order providing that the hearing would be rescheduled and held in
Harrisburg, Pennsylvania. The case was then transferred to ALJ Brown in the Office of
Administrative Law Judges' Camden, New Jersey office.
Judge Brown scheduled the hearing for April 17th and 18th in Harrisburg. In
an Order dated April 17, 2000, however, he continued the hearing "because of the inability of
the Complainant to afford transportation to the hearing location." Order at 1. Judge Brown
stated:
Before setting another date, the Respondent is notified that it has a
choice of location for the rescheduled proceeding. It will be
rescheduled in Harrisburg, Pennsylvania upon condition that
Respondent pays the costs of transportation, lodging and a reasonable
per diem, or, the matter will be set for Seattle, Washington where the
travel will be minimal for the Complainant.
Id. The ALJ attached a copy of the ARB's recent decision in Hasan v.
Commonwealth Edison Co., ALJ No. 1999-ERA-17, ARB No. 99-097, Order Denying
Interlocutory Appeal (Sept. 16, 1999), to his Order and indicated that the parties might find
it "instructive."1Id.
1 In Hasan v. Commonwealth
Edison Co., supra, a case arising under the Energy Reorganization Act, as amended, 42 U.S.C.
§5851 (1994), the complainant sought review of an ALJ's order rescheduling the
administrative hearing. The ALJ ordered the hearing to be held in Chicago, Illinois, where most of
the witnesses resided, rather than in Huntsville, Alabama, within 75 miles of the complainant's
residence, upon the respondents' agreement to pay for the complainant to attend the hearing in
Chicago.
2 Shaffer alleges: (1)
"It appears that Judge Brown may have assumed that Part 24 of Title 29 of the Code of Federal
Regulation [sic] is applicable to the disposition" of this case, (2) if the allegation that
Cook is unable to afford to attend the hearing in Harrisburg was made "in the course of
Complainant's ex parte communication with Judge Brown, Respondent is unaware of it and, of
course was not able to challenge or rebut Complainant's contention" and (3) "Judge
Brown's order also failed to explain why he did not apply the provisions of 29 C.F.R.§18.28
which requires requests for continuances to be filed within fourteen days prior to the hearing date
except for good cause arising after the fourteen day deadline." We note that Shaffer did not
first raise these allegations with the ALJ in the form of a motion for reconsideration. Instead, it
raised them for the first time on appeal to the ARB. Accordingly, there is no factual record by which
to judge the validity of Shaffer's allegations. Such a record would be especially crucial in
considering Shaffer's allegations of potentially detrimental ex parte communications and
the ALJ's alleged failure to comply with the regulations regarding continuances at 29 C.F.R.
§18.28.