Smith v. Kareem Transportation and Serpro Logistics (Board decision, February 21, 2018)

Plain-English summary

After an administrative law judge dismissed Shervis Smith's truck driver whistleblower complaint, Smith sent documents to the Board more than 14 days later. The Board treated them as a petition for review because Smith represented himself, even though he had not identified them that way. It ordered him to show that he had served the respondents' lawyers and to explain why the Board should accept a late petition. Smith provided neither the required proof of service nor a response on timeliness. The Board dismissed the appeal without reaching his underlying complaint.

Decision snapshot

• Cited authority: Truck driver whistleblower protection under 49 U.S.C. § 31105.
• Outcome: Appeal dismissed after Smith failed to provide proof of service or answer the order about his late filing.
• Key point: The Board gave Smith a chance to satisfy the filing requirements and explain lateness, but received neither response.

Full text (DOL official public release)

U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

IN THE MATTER OF:

SHERVIS R. SMITH,
ARB CASE NO. 18-021

COMPLAINANT,
ALJ CASE NO. 2017-STA-060

v. DATE: February 21, 2018

KAREEM TRANSPORTATION,
and

SERPRO LOGISTICS,

RESPONDENTS.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

ORDER DISMISSING APPEAL

On December 13, 2017, a Department of Labor Administrative Law Judge (ALJ) issued a Ruling on Respondent’s Motion for Summary Decision and Order of Dismissal (O. D.) in this case arising under the whistleblower protection provisions of the Surface Transportation Assistance Act. 1 On January 3, 2018, Complainant Shervis Smith filed a number of documents with the Administrative Review Board. From this filing, Smith’s intentions were unclear.

The ALJ’s O.D. included a statement regarding the parties’ appeal rights. O.D. at 7-8.
Complainant has not filed a document identified as a “petition for review,” nor did he file the documents (by postmark) within fourteen days of the date on which the ALJ issued his decision.
Nevertheless, because Complainant is representing himself, we erred on the side of caution and considered the documents to be a petition for review.

1
49 U.S.C.A. § 31105 (Thomson Reuters 2016) (STAA).

USDOL/OALJ REPORTER
PAGE 1
 But the Board issued an order informing Smith that before it could accept the petition for review, Smith must meet certain procedural requirements. First, if Smith intended to request the Board to review the ALJ’s O.D., he was required to serve all documents that he attempted to file with the Administrative Review Board on Respondents’ counsels and provide the Board with a certificate of service no later than January 22, 2018. Smith was cautioned that if he failed to provide this certificate, this action would be dismissed.

Second, because Smith filed the documents more than fourteen (14) days after the ALJ issued his Order, there was a question regarding the timeliness of Smith’s petition for review.
Nevertheless, the period for filing a petition for review with the ARB is not jurisdictional and therefore is subject to equitable modification. 2 Thus, we ordered Smith to show cause no later than January 26, 2018, why the Board should not dismiss the petition as untimely. We cautioned Smith that if he failed to timely respond to this Show Cause Order, the Board could dismiss his appeal without further notice.

Smith failed to comply with both of the Board’s requirements for his appeal to proceed.
He neither established that he had served the Respondents’ counsels with the documents he sent to the Board, nor did he show cause why the Board should toll the limitations period.
Accordingly, his appeal is DISMISSED.

FOR THE ADMINISTRATIVE REVIEW BOARD:

Janet R. Dunlop
General Counsel

Note: Questions regarding any case pending before the Board should be directed to the
Board’s Paralegal Specialists: Telephone: (202) 693-6200
Facsimile: (202) 693-6220

2
Accord Hillis v. Knochel Bros., ARB Nos. 03-136, 04-081, 04-148; ALJ No. 2002-STA-050, slip op. at 3 (ARB Oct. 19, 2004); Overall v. Tennessee Valley Auth., ARB No. 98-011, ALJ No.
1997-ERA-053, slip op. at 40-43 (ARB Apr. 30. 2001).

USDOL/OALJ REPORTER
PAGE 2