Patrick Alston v. HH Xpress LLC (agency decision, May 6, 2022)

Plain-English summary

An ALJ dismissed Patrick Alston's STAA complaint as filed beyond the 180-day deadline without grounds for equitable tolling. Alston appealed but missed the Board's December 20, 2021 opening-brief deadline and did not submit a brief until February 17, 2022 after a show-cause order. He cited holidays, weather, bereavement, illness, postage cost, and an attempted email to an OALJ address, but did not substantiate the delays or explain why he never asked the Board for an extension. The Board noted that its order required filing by mail or the electronic filing system and supplied contact information he had used. It dismissed the appeal for failure to prosecute without reviewing the merits.

Decision snapshot

• Cited authority: 49 U.S.C. § 31105(a)
• Outcome: Appeal dismissed for failure to prosecute; ALJ timeliness dismissal left in place.
• Key point: A late brief does not preserve an appeal when the party ignores the stated filing methods, seeks no extension, and offers no substantiated good cause.

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:

 PATRICK ALSTON,                                   ARB CASE NO. 2022-0011

               COMPLAINANT,                        ALJ CASE NO. 2021-STA-00065

        v.                                         DATE: May 6, 2022

 HH XPRESS LLC,

               RESPONDENT.

 Appearances:

 For the Complainant:
       Patrick Alston; pro se; Sanford, North Carolina

 Before: James D. McGinley, Chief Administrative Appeals Judge, and
 Thomas Burrell, Administrative Appeals Judge


        DECISION AND ORDER DISMISSING PETITION FOR REVIEW

        PER CURIAM. This case arises under the Surface Transportation Assistance
 Act of 1982 (“STAA”), as amended.1 Patrick Alston (Complainant) filed a
 whistleblower complaint against HH Xpress LLC (Respondent) for alleged
 retaliation. The Administrative Law Judge (ALJ) issued an Order Dismissing
 Complaint as Untimely (Order). Complainant appealed the ALJ’s decision to the
 Administrative Review Board (ARB or Board). We affirm.

                                      BACKGROUND

      Complainant worked for Respondent as a truck driver until he was fired on
 November 12, 2020.2 On July 1, 2021, he filed a whistleblower complaint with the


 1     49 U.S.C. § 31105(a) (2007); see also 29 C.F.R. Part 1978 (2020) (the STAA’s
 implementing regulations).
 2      Order at 1.

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Occupational Safety and Health Administration (OSHA), alleging his employment was terminated for reporting violations of the Federal Motor Carrier Safety Regulations. On July 21, 2021, OSHA dismissed the complaint as untimely because it was due on or before May 11, 2021.3

   Complainant, proceeding pro se, requested a hearing before an ALJ with the

Office of Administrative Law Judges (OALJ). On September 22, 2021, the ALJ ordered Complainant to show cause as to why the complaint should not be dismissed for failure to file it within the 180-day limitation. Complainant filed a response. On October 29, 2021, the ALJ dismissed the complaint.4

   On November 18, 2021, Complainant filed a petition for review with the

Board. On November 22, 2021, the Board issued a notice of appeal and order establishing briefing schedule, which required that Complainant’s opening brief be filed by December 20, 2021. Complainant did not file a timely opening brief.

   On February 11, 2022, the Board issued an order to show cause, ordering

Complainant to explain why his appeal should not be dismissed for failing to file a timely opening brief. On February 17, 2022, Complainant filed his response as well as his opening brief.

  On February 25, 2022, the Board issued an order providing that Respondent

had 28 days from receipt of the order to file a response brief and that Complainant had 14 days from receipt of Respondent’s response brief to file a reply brief. Respondent did not file a response brief and has never filed an appearance in this matter.

                  JURISDICTION AND STANDARD OF REVIEW

  The Secretary of Labor has delegated to the Board the authority to issue final

agency decisions under the STAA, as amended.5 The Board reviews an ALJ’s determinations on procedural issues under an abuse of discretion standard.6

3 Id.
4 Id.
5 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020). 6 Butler v. Anadarko Petroleum Corp., ARB No. 2012-0041, ALJ No. 2009-SOX-00001, slip op. at 2 (ARB June 15, 2012) (citation omitted).

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                                   DISCUSSION

  The Board has inherent power to dismiss a case for want of prosecution to

control its docket and to promote the efficient disposition of its cases.7 Further, the Board may dismiss a complaint in a case in which the complainant failed to adequately explain his failure to comply with the Board’s briefing schedule.8

 Complainant’s deadline to file an opening brief was December 20, 2021.

However, the Complainant did not file his brief until February 17, 2022.

   Complainant contends his appeal should not be dismissed because he was

delayed in filing his brief for several reasons. First, Complainant asserts that he relies on local and state agencies and resources, such as the U.S. Postal Service, to communicate and transact his affairs. He contends he was delayed because these agencies were closed due to the holidays and wintry weather conditions and experienced backlogs. He also explains that he was delayed in filing a timely brief because of a bereavement and because he was ill with the flu and/or COVID-19.

  However, we find that Complainant has not demonstrated good cause to

excuse his failure to file a timely brief. While he asserts several factors delayed him, he has neither substantiated these claims nor explained why he was unable to request an extension of time to file a brief.

  Complainant also asserts that he filed the brief on January 27, 2022. He

explains that he intended to mail his brief but did not because of the cost of postage. Rather, he states that he emailed his brief to OALJ-Headquarters-DC, an address from which he previously received an email.9

  However, the briefing order instructed Complainant to file his brief either by

mail or through the Board’s Electronic File and Service (EFS) system.10 The briefing order did not provide that a brief could be filed via email.11 In addition to the instructions set out in the briefing order, the Board also provides guidance to

7 Lewman v. Ken Brick Masonry Supply, ARB No. 2007-0015, ALJ No. 2006-STA- 00018, slip op. at 3 (ARB Oct. 31, 2007) (quoting Link v. Wabash R. R. Co., 370 U.S. 626, 630-31). 8 Novick v. Morgan Stanley Smith Barney, LLC, et al., ARB No. 2021-0024, ALJ No. 2020-SOX-00026, slip op. at 4 (ARB July 16, 2021) (citing Steffenhagen v. Securitas Sverige, AR, et al., ARB No. 2003-0139, ALJ No. 2003-SOX-00024 (ARB Jan. 13, 2004)). 9 Comp. Br. at 2. 10 Notice of Appeal and Order Establishing Briefing Schedule (ARB Nov. 22, 2021). 11 Id.

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individuals on its website that explains the filing process and how briefs can be filed electronically or by mail.12

    Further, the briefing order provided Complainant with the Board’s telephone

and facsimile numbers in case he had any questions regarding his case.13 Notably, he acknowledged that he called this number.14 However, despite knowing how to contact the Board, he did not contact the Board regarding an extension of time to file his brief.

  Even if the Board had received Complainant’s brief on January 27, 2022, it

would have been more than five weeks late. While Complainant filed his brief on February 17, 2022, he did not seek leave from the Board to file a late brief.

   Moreover, this is not the first instance that Complainant was untimely in

relation to this matter. Respondent fired Complainant on or about November 12, 2020.15 However, Complainant did not file his complaint with OSHA until July 1, 2021, beyond the 180-day statute of limitations.16 The ALJ determined the complaint was untimely and no equitable tolling principles applied.17

    Thus, Complainant has not provided a sufficient explanation as to why he did

not file a timely brief and did not request an extension of time. Therefore, we conclude that Complainant’s appeal should be dismissed for failure to prosecute it before the Board.

                                CONCLUSION18

  Accordingly, we DISMISS Alston’s complaint.

  SO ORDERED.

12 See Boles v. Union Pacific R.R. Co., ARB No. 2021-0061, ALJ No. 2020-FRS-00101, slip op. at 4-5 (ARB Nov. 1, 2021) (Absence of a notice of appeal rights and lack of instruction from counsel on how to file an appeal do not provide grounds for equitable tolling of the filing deadline). 13 Notice of Appeal and Order Establishing Briefing Schedule (ARB Nov. 22, 2021). 14 Comp. Response to Order to Show Cause at 2. 15 D. & O. at 1. 16 Id. 17 Id. 18 In any appeal of this Decision and Order that may be filed, we note that the appropriately named party is the Secretary, Department of Labor (not the Administrative Review Board).