ORDER VACATING PROCEDURAL ORDERS
AND DIRECTING REASSIGNMENT
This case arises under Section 405 of the
Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.
app. § 2305 (1988), and it. implementing regulations, 29
C.F.R. Part 1978 (1991). Complainant Robert Spearman has moved to
recuse Administrative Law Judge (ALJ) Bernard J. Gilday, Jr.,
from hearing this case. See 5 U.S.C. S 556(b) (1988)
(functions of presiding ALJs shall be conducted in an impartial
manner). An ALJ may be disqualified upon a showing of personal
bias. Roach v. National Transp. Safety Bd., 804 F.2d 1147,
1160 (l0th Cir. 1986), cert. denied, 486 U.S. 1006 (1988).
To establish improper prejudgment, it must appear that the ALJ in
some measure adjudged the facts and the law of a case in advance
of hearing them. City of Charlottesville. VA. v. FERC, 774
F.2d 1205, 1212 (D.C. Cir. 1985), cert. denied, 475 U.S.
1108 (1986). Other factors, such as the complexity of a case and
an A W's experience and ability, also may bear on the necessity
for reassignment. Aaacon Auto Transport Inc. v. ICC, 792
F.2d 1156, 1162-1163 (D.C. Cir. 1986), cert. denied, 481
U.S. 1048 (1987) (agency authorized to remove ALJ for inadequate
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handling of proceedings). AccordSykes v. Bowen,
854 F.2d 284, 287-288 (8th Cir. 1988). Although the
Administrative Procedure Act requires agencies to assign ALJs in
rotation to the extent "practicable," 5 U.S.C. §
3105 (1988), a "modicum of discretion" is accorded in
assignment decisions. Aaacon Auto Transport. Inc. v. ICC,
792 F.2d at 1163, citing Ramspeck v. Federal Trial Examiners
Conference, 345 U.S. 128 (1953). SeeChocallo v.
Bureau of Hearings and Appeals. SSA, 548 F. Supp. 1349, 1369-1370 (E.D. Pa. 1982), aff'd without opinion, 716 F.2d 889
(ad Cir.), cert. denied, 464 U.S. 983 (1983) (approving
method of assignment which took into consideration experience,
size and complexity of preexisting dockets, number of out-of-city
assignment).
In the instant case, the question of
procedure is close. I find particularly disturbing that the AW
repeatedly ruled on Respondent's motions withoutawaiting
expiration of the period permitted under the regulations for
Complainant's response, thus denying him an opportunity to be
heard. In all instances, Complainant's timely responses, filed
shortly after the ALJ's premature rulings, are well-taken and
deserved careful consideration. Moreover, some of the ALJ's
rulings, discussed below, plainly are in error. Upon
consideration of the case's development, I believe that fairness
may be served by vacating certain of the ALJ's procedural orders
and remanding the case to the Chief Administrative Law Judge for
assignment to a different ALJ for purposes of conducting a
denovo hearing in accordance with the following
discussion. In directing reassignment, I note that, as was the
case with the ALJ in Aaacon Auto Transport, ALJ Gilday
"did not preside at the taking of any evidence, so [a]
change [will] not require the new ALJ to make credibility
determinations as to witnesses he ha[s] not heard." 792 F.2d
at 1163. SeeTractor Training Service v. Federal Trade
Commission, 227 F.2d 420, 423-424 (9th Cir. 1955), cert.
denied, 350 U.S. 1005 (1956) (early substitution of hearing
examiner who afforded parties opportunity to start proceedings
anew did not result in prejudice).
1. The February 1992 Show Cause Requirement
In October 1991, Complainant requested an
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extension, of unspecified duration, of the period in which to
object to findings issued by the Assistant Secretary for
Occupational Safety and Health, in order to provide him an
opportunity to retain counsel and to prepare and file his
objections. Complainant complied with the ALJ's order granting an
extension by filing his objections in January 1992. Pursuant to a
separate ALJ order, Complainant also filed a preheating statement
in late January. In early February, Complainant contacted an
attorney regarding representation. "On the road" in
performance of his truck driving employment, Complainant was
unable to meet with and retain counsel until February 17. By
order of continuance issued February 19, the ALJ, interalia, ordered Complainant "under oath and on the
record . . . to show cause why he had neither abused nor misused
the administrative process" apparently because it appeared
to the ALJ that "a lawyer ha[d] been lurking in the shadows
of Complainant's case even prior to the January 30, 1992, filing
of this preheating statement]." In an order issued April 2,
the ALJ stated: "Counsel would and should prepare
Complainant for his announced, on-record demonstration that he
has not abused or misused the administrative process and that he
should not be the subject of a proceeding in contempt initiated
in the United States District Court for the Southern District of
Ohio."
Complainant's extension request was grounded
on his intent to retain counsel and his need to prepare
and document his objections. He did not represent that he
necessarily required counsel to prepare the objections. Until
counsel entered her appearance in February 1992, Complainant
represented himself in this case, including by filing papers, as
was his right under the regulations. 29 C.F.R. § 18.34
(1991). Whether Complainant may have had assistance in preparing
his filing. is immaterial. Intending to retain counsel,
Complainant reasonably requested compensation for any attorney's
fees and expenses incurred "in pursuit of a reasonable
resolution of this case" upon filing his preheating
statement. See 29 C.F.R. § 1978.106(d) (prehearing
statement shall set forth remedy requested). In short, the record
is devoid of any suggestion that Complainant in some manner
engaged in abuse of process. Accordingly, the ALJ's "show
cause" requirement IS VACATED.
2. The March and April 1992 Orders Limiting
Complainant's Claims
ALJ Gilday limited Complainant's claims to
the notation apparently recorded by the Occupational Safety and
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Health Administration (OSHA) investigator in January 1991,
i.e., "C[omplainant] alleged that on 11/16/90
R[espondent] refused to reimburse him for motel expenses he was
forced to use because he was too ill and fatigued to drive
safely. H This disposition is erroneous. A complainant's initial
charge is not a formal pleading setting forth legal causes of
action which may serve to limit a suit. SeeRichter v.
Baldwin Associates, Case Nos. 84-ERA-9, et. seq., Sec.
Remand Dec., Mar. 12, 1986, slip op. at 9-11. Its purpose merely
is to initiate an investigation. A complainant may not have
consulted counsel before filing with an agency and may be
ignorant of applicable law or of precisely "what constitutes
the violation; all the complainant knows is that some adverse
action was unfairly taken against him or her." Id. at
10.
Under the STAA, Complainant is accorded an
opportunity for denovo hearing of his complaint.
29 C.F.R. § 1978.106. In this case, Complainant's complaint
additionally is defined by a ninepage OSHA questionnaire and
background information sheet provided by Complainant on March 13,
1991, including a complaint narrative. The investigation findings
issued on September 26, 1991, Complainant's objections to those
findings, and Complainant's prehearing statement are useful in
confirming the substance and scope of the complaint. Here,
Complainant objected in part that the Assistant Secretary's
findings failed to address the totality of his complaint and that
Respondent had misled the investigator. It is uncontroverted that
Respondent received copies of the above documents. See Resp.
2/10/92 Pre-hearing Statement, Exhs. C and E.