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Howick v. Campbell-Ewald Co., 2003-STA-6 (ALJ Sept. 25, 2003)
U.S. Department of Labor | Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202 (513) 684-3252 | ![]() |
Issue Date: 25 September 2003
Case No. 2003-STA-6
ARK E. HOWICK,
Complainant,
v.
CAMPBELL-EWALD COMPANY,
Respondent.
This matter arises under the Surface Transportation Assistance Act of 1982 ("the Act" or "STAA"), 49 U.S.C. §§ 2305, and the regulations promulgated thereunder at 29 C.F.R. Part 1978. Section 405 of the STAA provides protection from discrimination to employees who report violations of commercial motor vehicle safety rules or who refuse to operate a vehicle when such operation would be in violation of those rules.
The undersigned issued a recommended decision and order - dismissal of complaint on September 18, 2003. That same day, the undersigned issued an order directing the parties to submit briefs on the issue of whether or not sanctions should be assessed against Respondent. In the recommended decision and order, the undersigned found that the documents filed by Complainant on September 17, 2003 were premature.1
The documents submitted by Complainant on September 17, 2003 were: (1) a letter entitled "MR. MARK E. HOWICK'S REQUEST FOR SUBPOENAS, MOTION TO ORDER IN CAMERA REVIEW AND IMPOUND DOCUMENTS, MOTION FOR LEAVE OF COURT TO FILE MOTION TO RECONSIDER SEPTEMBER 9, 2003 ORDER DISMISSING FOR "FAILURE TO PROSECUTE", AND COMPLAINANT'S SUGGESTION OF SUA SPONTE JUDICIAL RECUSAL."; (2) COMPLAINANT'S MOTION FOR DEFAULT JUDGMENT AGAINST CAMPBELL-EWALD; (3) DECLARATION OF MARK E. HOWICK; (4) A suggested order of default judgment to be entered against Respondent; and (5) two subpoena duces tecum. The undersigned stated that Complainant may re-file the documents in response to the decision and order, file new documents responsive to the decision and order, or avail himself of any action to which he is legally entitled.
On September 20, 2003, Complainant submitted to the undersigned a facsimile of a document entitled "COMPLAINANT MR. MARK E. HOWICK'S [sic] RENEWED REQUEST FOR SUBPOENAS, MOTION TO ORDER IN CAMERA REVIEW AND IMPOUND DOCUMENTS, MOTION FOR LEAVE OF COURT TO FILE MOTION TO RECONSIDER SEPTEMBER 9, 2003 ORDER DISMISSING FOR "FAILURE TO PROSECUTE", AND COMPLAINANT'S SUGGESTION OF SUA SPONTE JUDICIAL RECUSAL [sic] 2. NOTICE OF FILING OF SEPTEMBER 19, 2003 OSHA COMPLAINT [sic] 3. RESPONSE TO C-E MOTION FOR ILLEGAL "GAG ORDER" [sic] 4. REQUEST TO DISCLOSE INDEX OF FILINGS, ANY EX PARTE CONTACTS, AND WHETHER C-E EVER FILED HIS DEPOSITION."
29 C.F.R. § 1978.100(b) defines the purpose and scope of the STAA, stating that 29 C.F.R. part 1978 and 29 C.F.R. part 18 set forth the procedures for submission of complaints under section 405, investigations, issuance of findings and preliminary orders, objections thereto, litigation before administrative law judges, post-hearing administrative review, withdrawals and settlements, judicial review and enforcement, and deferral to other forums. In turn, 29 C.F.R. § 18.1, which identifies the scope of the rules of practice and procedure for administrative hearings before the office of the administrative law judges, states that the "Rules of Civil Procedure for the District of the United States shall be applied in any situation not provided for or controlled by these rules, or by any statute, executive order or regulation."
Complainant did not re-file his motion for a default judgment, thus, it will not be considered. Since Complainant's claim has been dismissed through the undersigned's recommended decision and order dated September 18, 2003, Complainant's request for subpoenas and his motion to order in camera review and impound documents are dismissed as moot.2 With regard to Complainant's motion for leave of court to file motion to reconsider September 9, 2003 order dismissing for failure to prosecute, the undersigned stated in the September 18, 2003 recommended decision and order - dismissal of complaint that Complainant may avail himself of any action to which he is legally entitled. That directive has not changed.3
Complainant's suggestion for sua sponte judicial recusal is denied. If Complainant's "suggestion" was intended to be a motion for disqualification of the undersigned, it is denied since it does not comply with 29 C.F.R. § 18.31(b). The undersigned does not deem himself disqualified to preside over this particular proceeding, therefore, he will not withdraw from this proceeding. See 29 C.F.R. § 18.31(a).
Remaining for resolution is Complainant's request to disclose index of filings, any ex parte contacts, and "whether C-E ever filed his deposition." At the end of Complainant's letter, Complainant requests that the undersigned: "(a) serve the parties with copies of a complete computer printout of the DOL OALJ computer index (now or formerly known as System 10 and 11) of all filings in 2003-STAA-6 case, (b) kindly state whether Respondent Campbell-Ewald ever filed Mr. Howick's deposition, as promised, and (c) make a full disclosure of any ex parte contacts, whether by any DOL employee or any other person, firm, or organization. See Cinderella Career & Finishing Schools v. FTC, 435 F.2d 563, 591-592 (D.C. Cir. 1970)."4 The pages of Cinderella to which Complainant cites discusses the issue of disqualification regarding the former chairman of the Federal Trade Commission after he made public statements that indicated his prejudgment of the matter before him. The District of Columbia Circuit Court's decision in Cinderella does not provide any support for Complainant's requests that the parties be served with copies of a computer printout, a statement on whether Complainant's deposition was filed by Respondent, nor a full disclosure of any ex parte contacts. Complainant has not identified any statute or case law as grounds for his request. However, the undersigned has attached to this order a copy of a printout of the record of all filings received by the undersigned in this matter. Respondent filed Volume I of Complainant's deposition at the hearing on September 9, 2003. Since Complainant's request to "make a full disclosure of any ex parte contacts, whether by any DOL employee or any other person, firm, or organization" is a vague and ill-defined request, the request is denied.5
At the hearing, the undersigned informed that parties that he was considering as a separate matter the issue of whether sanctions should be assessed against Respondent arising out of the discovery process. On September 18, 2003 the undersigned issued an order directing the parties to submit briefs on that issue. Upon further review and reflection, the undersigned hereby, sua sponte, vacates that order. The undersigned will not issue sanctions against Respondent. Complainant alleges that Respondent did not produce a large volume of documents that had been requested until September 4, 2003. Further, Complainant alleges that Respondent only allowed Complainant two-hours to inspect and copy the "two tons of documents." Through an agreement of the parties reached during an July 25, 2003 conference call with the undersigned, the parties agreed that Complainant would be deposed during the week of August 18, 2003. The parties also agreed that Respondent would make available to Complainant all documents that Complainant had requested. However, Complainant failed to attend his deposition, foregoing his opportunity to review and inspect the documents that he requested at that time. Additionally, Complainant never availed himself of the right to file a motion to compel the production of documents as provided 29 C.F.R. § 18.21. The undersigned is no longer considering sanctions against Respondent. Therefore,
IT IS ORDERED that:
1. Complainant's motion to order in camera review and impound documents is DENIED;
2. Complainant's motion for leave of court to file a motion for reconsideration is not ruled upon, and Complainant is again admonished that he is entitled to avail himself of any right to which he is legally entitled;
3. Complainant's suggestion of sua sponte judicial recusal is denied to the extent his suggestion acts as a motion;
4. Complainant's request to disclose index of filings is GRANTED, and Complainant's request to disclose any ex parte contacts and whether Respondent ever filed "his" deposition is DENIED; and
5. The undersigned's August 18, 2003 order directing the parties to brief the issue of sanctions against Respondent is hereby VACATED, and any statements by the undersigned at the hearing that sanctions would be imposed against Respondent are hereby withdrawn.
THOMAS F. PHALEN, JR.
ADMINISTRATIVE LAW JUDGE
1 Complainant's filings were deemed premature through no fault of Complainant. Rather, the undersigned inadvertently referred to the his order of dismissal as a "final" order instead of a "recommended" order. Complainant's post-hearing motions were filed in response to the stated final order.
2 Complainant alleged that the deposition subpoenas are "in support of the Court's Order for briefing on remedial sanctions against Respondents . . ."
3 Complainant alleged that the undersigned illegally ordered that Complainant not file a motion for reconsideration. A review of the transcript from the hearing reviews no such "illegal" order.
4 The case found at 435 F.2d 563 is Domtar Newsprint Sales Ltd. v. U.S., 435 F.2d 563 (Ct. Cl. 1970) which is an action seeking recovery of income tax that had been paid. The matter of Cinderella Career & Finishing Schools, Inc. v. F.T.C. is found at 425 F.2d 583 (D.C. Cir. 1970).
5 The undersigned is not aware of any ex parte communications made by himself or any member of his staff in violation of 29 C.F.R. § 18.38 in this matter. Strictly interpreted, 29 C.F.R. § 18.38 exempts only requests for extensions of time. It is the practice of the undersigned to not speak to parties or their representatives ex parte, except in circumstances of emergency or dire necessity. The undersigned's staff is permitted to discuss various procedural matters, but not to give legal advice or to discuss the subject matter of the case.