On April 22, 1991, the Administrative Law
Judge (ALJ) issued a [Recommended] Order of Dismissal in this
case which arises under the Surface Transportation Assistance Act
of 1982 (STAA), 49 U.S.C. app. § 2305 (1988). Pursuant to
the regulations implementing the STAA, the ALJ's decision is now
before me for review. See 29 C.F.R. § 1978.109(a)
(1990).
Without giving prior notice, Complainant
failed to appear at the hearing scheduled for March 5, 1991. The
ALJ, therefore, issued an Order to Show Good Cause why the claim
should not be dismissed. Complainant responded by letter dated
March 13, 1991, explaining that he was in the process of
obtaining legal assistance and that he had been referred to an
attorney on that date. Complainant apologized and requested that
another hearing be scheduled. The ALJ found that the absence of
legal representation does not excuse Complainant's failure to
appear at the scheduled hearing and ordered dismissal.
While applicable regulations authorize an ALJ
to dismiss a request for hearing where a party is deemed to have
abandoned the request, see 29 C.F.R. §§
1978.106(a); 18.39(b), dismissal is a severe sanction, which I
find is not warranted under the facts presented here. Although
Complainant should have acted more diligently by giving the ALJ
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prior notice of his unwillingness to proceed prose, the ALJ did not find, nor does the record reveal, any
evidence of bad faith or contumacious conduct. In the absence of
such evidence, and in the absence of prior warning to Complainant
that dismissal was contemplated, I cannot accept the ALJ's
recommended order. SeeHarris v. Callwood, 844 F.2d
1254, 1256 (6th Cir. 1988); Young v. CBI Services. Inc.,
Case No. 88ERA-0008, Sec. Dec. and Order of Remand, Aug. 10,
1988, slip op. at 2-3.
Accordingly, this case is REMANDED to the ALJ
for further proceedings.
