Herring v. South Central Florida Express (agency decision, September 26, 2022)

Plain-English summary

Timothy Herring and Michael Lockmiller asked the Board to review an ALJ dismissal of their Federal Railroad Safety Act complaints. The Board issued a show-cause order questioning whether their petition for review was timely. The complainants then filed an original action in federal district court under 49 U.S.C. § 20109(d)(3) and asked the Board to close the administrative case. The Board granted withdrawal and dismissed the appeal without deciding the underlying retaliation allegations.

Decision snapshot

• Cited authorities: 49 U.S.C. § 20109 and § 20109(d)(3)
• Outcome: Petition for review withdrawn; ARB appeal dismissed; merits not decided.
• Key point: The Board closed its appeal at the complainants' request after they pursued de novo review in federal district court.

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:

TIMOTHY HERRING, ARB CASE NO. 2022-0061

     and                                     ALJ CASE NOS. 2022-FRS-00029
                                                           2022-FRS-00030

MICHAEL LOCKMILLER,
DATE: September 26, 2022
COMPLAINANTS,

     v.

SOUTH CENTRAL FLORIDA EXPRESS

           RESPONDENT.

Appearances:

For the Complainants:
James R. Ferguson, Esq.; Law Office of H. Chris Christy, North Little
Rock, Arkansas

For the Respondent:
Brian McPherson, Esq.; Gunster, Yoakley & Stewart, P.A.; West Palm
Beach, Florida; Eduardo Suarez-Solar, Esq.; Gunster, Yoakley &
Stewart, P.A.; Tampa, Florida

Before HARTHILL, Chief Administrative Appeals Judge, and BURRELL,
Administrative Appeals Judge

                           ORDER OF DISMISSAL

  PER CURIAM. This case arises under the employee protection provision of the

Federal Railroad Safety Act of 1982 (FRSA).1 On August 26, 2022, Complainants

1 49 U.S.C. § 20109, as implemented by 29 C.F.R. Part 1982 (2021) and 29 C.F.R. Part
18 (2021), Subpart A.

                                         2

filed a Petition for Review with the Administrative Review Board (Board).
Complainants requested review of the Dismissal Order issued July 28, 2022, by
Administrative Law Judge Heather C. Leslie. On August 30, 2022, the Board issued
an Order to Show Cause for Complainants to show cause why the Petition for
Review should not be dismissed as untimely.

   On September 20, 2022, Complainants filed a Notice with the Board

indicating that on August 29, 2022, they had filed an original action pursuant to 49
U.S.C. § 20109(d)(3), with the United States District Court for the Southern District
of Florida, seeking de novo review. Therefore, Complainants requested that the
Board “close the pending action before the United States Department of Labor
Administrative Review Board.”2

   Accordingly, we GRANT Complainants’ request to withdraw the Petition for

Review and DISMISS this appeal.

SO ORDERED.

SUSAN HARTHILL
Chief Administrative Appeals Judge

THOMAS H. BURRELL
Administrative Appeals Judge

2 Complainant’s Notice of Federal Court Filing at 1.