Judy v. Covenant Transport, Inc. (agency decision, December 15, 2021)

Plain-English summary

The Board had dismissed Kevin Judy's STAA complaint against Covenant Transport on November 8, 2021. Judy then sought reconsideration and argued that the Board had missed information about his unemployment-benefit proceedings, advice from a whistleblower investigator, medical conditions, property damage, and the timing of an FMCSA report. The Board applied its four recognized reconsideration grounds, covering previously unavailable differences in fact or law, later material facts, a change in law, and failure to consider a material fact already presented. It found that Judy relied only on the last category but repeated arguments the Board had already considered. The Board denied reconsideration without revisiting those arguments.

Decision snapshot

• Cited authority: 49 U.S.C. § 31105(a)
• Outcome: Petition for reconsideration denied; prior dismissal remains in effect.
• Key point: Reconsideration is not a second opportunity to repeat arguments the Board already considered.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

In the Matter of:

KEVIN JUDY,                                        ARB CASE NO. 2021-0015

            COMPLAINANT,                           ALJ CASE NO. 2019-STA-00054

      v.                                           DATE: December 15, 2021

COVENANT TRANSPORT, INC.,

            RESPONDENT.

Appearances:

For the Complainant:
      Kevin Judy; pro se; Orlando, Florida

For the Respondent:
      John R. Bode, Esq.; Miller & Martin PLLC; Chattanooga, Tennessee

Before: James D. McGinley, Chief Administrative Appeals Judge, Thomas
H. Burrell and Stephen M. Godek, Administrative Appeals Judges


                    ORDER DENYING RECONSIDERATION

       PER CURIAM. This case arises under the Surface Transportation Assistance
Act of 1982, 49 U.S.C. § 31105(a) (2007) (STAA), as amended, and its implementing
regulations at 29 C.F.R. Part 1978 (2020). Kevin Judy (Complainant) filed a
complaint alleging that Covenant Transport (Respondent) retaliated against him in
violation of STAA’s whistleblower protection provisions. The Administrative Law
Judge (ALJ) issued an Order Dismissing Complaint (Order). Complainant appealed
to the Administrative Review Board (Board). On November 8, 2021, the Board
dismissed the complaint.

      On November 19, 2021, Complainant’s counsel, Richard R. Renner, Esq., filed
a motion seeking to withdraw as counsel for Complainant. On November 22, 2021,
Complainant filed a pro se petition seeking reconsideration of the Board’s decision.
Respondent filed a response on December 10, 2021.
                                       2


   The Board is authorized to reconsider a decision upon the filing of a motion

for reconsideration within a reasonable time of the date on which the Board issued the decision.1 In considering whether to reconsider a decision, the Board has applied a four-part test to determine whether the movant has demonstrated:

  (i) material differences in fact or law from that presented to the
  Board of which the moving party could not have known through
  reasonable diligence, (ii) new material facts that occurred after
  the Board’s decision; (iii) a change in the law after the Board’s
  decision, and (iv) failure to consider a material fact presented to
  the Board before its decision.2

   Complainant contends that we should reconsider our decision because he

submitted information that “seems to have been missed.”3 Specifically, Complainant asserts the Board did not consider that his former employer submitted false information to deny him unemployment benefits, he was told by the Secretary of Labor’s whistleblower investigator to refile his complaints in January 2019, and that his serious medical illnesses and damage to his house impacted his ability to find an attorney sooner. In addition, Complainant notes several factors that the Board did consider, such as the complaint he filed with the Federal Motor Carrier Safety Administration (“FMCSA”) and that he did not receive a copy of the FMCSA report until September 24, 2020.

   Complainant’s motion does not fall within any of the first three grounds for

reconsideration. Rather, he appears to rely solely on a failure to consider material facts. However, because Complainant’s motion repeats arguments that he raised in his original appeal and the Board already considered, we will not address them again on reconsideration.4

  Accordingly, we DENY Complainant’s Petition for Reconsideration.

  SO ORDERED.

1 Abbs v. Con-Way Freight, Inc., ARB No. 2012-0016, ALJ No. 2007-STA-00037, slip op at 2 (ARB June 11, 2013) (Order Denying Motion for Reconsideration). 2 Clark v. Hamilton Hauling, LLC, ARB No. 2013-0023, ALJ No. 2011-STA-00007, slip op. at 2 (ARB July 24, 2014) (Order Denying Motion for Panel Reconsideration). 3 Comp. Request for Reconsideration at 1. 4 Jackson v. CPC Logistics, ARB No. 2007-0006, ALJ No. 2006-STA-00004 (ARB Jan. 29, 2009) (Order Denying Reconsideration) (denying motion for reconsideration where a party repeated his prior arguments); Elbert v. True Value Co. and John Doe and Mary Roe, ARB No. 2007-00031, ALJ No. 2005-STA-00036, slip op. at 2 (ARB Nov. 24, 2010) (Order Denying Reconsideration) (denying motion for reconsideration where a party “merely repeats arguments he raised before.”).